The importance of compliance
Contemporary armed conflicts – such as those in Syria, the Central African Republic and South Sudan, to name just a few – continue to be marked by enormous human suffering. They also illustrate how complex armed violence has become nowadays. Despite the emergence of new actors of violence, and new means and methods of warfare, all of which may put existing international humanitarian law (IHL) rules to the test, IHL continues to provide an adequate framework to attenuate the effects of armed conflict and to establish a judicious balance between the principles of humanity and military necessity.Footnote 1 Treaty and customary law provisions set limits to the waging of war, but the single biggest challenge facing IHL today lies in persuading parties to the conflict to comply with the rules by which they are bound. Violations of the most fundamental and uncontroversial rules remain a sad reality.Footnote 2 Stricter compliance with existing IHL rules would considerably improve the plight of persons affected by armed conflicts.Footnote 3 Thus, there is a pressing need to generate respect for the law and, as one important avenue in this context, to re-emphasize and clarify the extent to which, as provided by common Article 1 to the four Geneva Conventions (CA 1), as well as by Article 1(1) of Additional Protocol I (AP I), the High Contracting Parties thereto are bound to “respect and ensure respect” for their provisions “in all circumstances”.
The obligation to respect the Geneva Conventions means that a State must do everything it can to guarantee that its own organs abide by the rules in question.Footnote 4 In essence, this part of the provision reaffirms the basic principle of pacta sunt servanda, codified in Article 26 of the Vienna Convention on the Law of Treaties. In the case of a non-international armed conflict, the obligation to respect also binds organized armed groups, in accordance with Common Article 3. Indeed, compliance with IHL is the primary responsibility of the parties to a conflict. However, CA 1 goes one step further by introducing an undertaking to ensure respect in all circumstances, which, in turn, consists of an internal and an external component. The internal component implies that each High Contracting Party to the Geneva Conventions must ensure that the Conventions are respected at all times not only by its armed forces and its civilian and military authorities, but also by the population as a whole.Footnote 5 The existence of this internal obligation, as well as the possibility to hold States legally responsible in case of failure to comply with it, is widely accepted. The external component postulates that third States not involved in a given armed conflict – and also regional and international organizationsFootnote 6 – have a duty to take action in order to safeguard compliance with the Geneva Conventions, and arguably with the whole body of IHL, by the parties to the conflict.
The purpose of this article is to cast some light upon this external component, which some authors have described as being beset by uncertainty.Footnote 7 In particular, emphasis will be placed on the nature and extent of the obligations of each High Contracting Party to the Geneva Conventions to ensure respect by the other High Contracting Parties, whether they are a party to the conflict or not.Footnote 8 If compliance with existing IHL constitutes the key element for averting current humanitarian problems during armed conflict, there is then a need to elucidate the extent of this obligation. For instance, in a conflict in which a State A systematically mutilates civilians from a State B, must a neutral State C endeavour to stop such mutilations? In a situation of occupation in which a State A prevents the occupied territory of a State B from receiving humanitarian assistance, what are the responsibilities of a non-belligerent State C with close diplomatic ties to State A? Is it lawful for a State C to sell weapons to a State A, if it knows that they are going to be used to commit serious IHL violations in a conflict against a State B? CA 1 is a sound basis for dealing with these matters.
By construing the scope of CA 1, this article will demonstrate that third States – that is, States not taking part in an armed conflict – have an international legal obligation to actively prevent IHL violations. First, it will examine the historical background of the obligation to ensure respect, in particular by revisiting the travaux préparatoires to the Geneva Conventions of 1949. Second, it will focus on an array of subsequent practice by States, intergovernmental organizations and international tribunals, supporting the view that third States indeed have a duty to ensure compliance with IHL, even in conflicts to which they are not a party. After having evinced the existence of this external component of the obligation, the article will assess its exact nature. In that sense, it will frame CA 1 within the context of an obligation of due diligence – as opposed to an obligation of result – and will briefly enumerate a series of measures available to States in order to comply therewith. Lastly, the article will look at the type of action that CA 1 requires from High Contracting Parties to the Geneva Conventions, or prohibits them from taking. This last part will emphasize the role that CA 1 can play in delineating a preventive approach to IHL violations. For these purposes, the recently adopted Arms Trade Treaty will be used as a case study.
Historical background of the obligation to ensure respect by others
Article 25 of the 1929 Geneva Convention on the Amelioration of the Condition of the Wounded and Sick in Armies in the Field and Article 82 of the 1929 Geneva Convention on the Treatment of Prisoners of War already established that both texts “shall be respected by the High Contracting Parties in all circumstances”. These provisions have been unanimously read as imposing, for the first time, the obligation to abide by the rules of the Conventions regardless of the behaviour of other parties.Footnote 9 Apart from their unprecedented character within the law of treaties,Footnote 10 Articles 25 and 82 of the 1929 Geneva Conventions laid down the foundations of what is now known as the principle of non-reciprocityFootnote 11 – in other words, that reciprocity may not be invoked to disregard IHL obligations in case the adversary violates the law. If the 1929 Geneva Conventions marked a milestone in the efforts to safeguard compliance with IHL, CA 1 to the four Geneva Conventions of 1949 went a step further by asserting that “the High Contracting Parties undertake to respect and to ensure respect for the [Geneva Conventions] in all circumstances”. Three major diverging features need to be highlighted between CA 1 and its 1929 predecessors:
1. First and foremost, CA 1 introduced the obligation to “ensure respect” for the Geneva Conventions. Several of the numerous implications of this new commitment will be discussed below.
2. Second, unlike in 1929, when the obligation to respect in all circumstances was placed within the chapters dealing with the issue of execution at the very end of the Conventions, the 1949 Diplomatic Conference decided to place the more far-reaching obligation of CA 1 right at the beginning of all four Geneva Conventions. Such a decision should be seen as anything but trivial, in terms both of its purpose and of its imperative nature.Footnote 12
3. Third, CA 1 is written in the active voice (“The High Contracting Parties undertake to respect and to ensure respect”), whereas its 1929 counterparts resorted to the passive voice (“shall be respected by the High Contracting Parties”). Regardless of whether the use of a particular grammatical construction entails any legal value, the wording of CA 1 helps to emphasize the system of protection underpinning the Geneva Conventions, and hence its interpretation.
The common Articles to the Geneva Conventions reflect matters that the drafters deemed significant enough “to merit emphasis through repetition”.Footnote 13 It is reasonable to assume that CA 1 goes beyond the mere obligation to respect the Geneva Conventions at the domestic level. After all, the above-mentioned customary principle pacta sunt servanda already acknowledges that any State ratifying a particular treaty is bound to respect it in good faith. If CA 1 represents such a breakthrough in the development of IHL, it is not because it reiterates an already existing and uncontroversial rule of public international law but rather due to its unprecedented creation of a legal obligation for each State to ensure respect towards the international community as a whole.Footnote 14 This is what can be deduced from a joint analysis of the travaux préparatoires and the subsequent application of CA 1 for over sixty years.
Before looking back at the inception of the Geneva Conventions, it is necessary to highlight that the travaux préparatoires are to be seen as a supplementary means of interpretation,Footnote 15 contrary to the ulterior behaviour of States in the application of a treaty, which constitutes a primary source in the analysis of conventional obligations.Footnote 16 Nevertheless, taking into consideration that – as stated above – some authors have deemed the undertaking to ensure respect by others to be a norm surrounded by uncertainty, a study of both the origin and practice of this obligation will shed further light upon the nuances of the rule.
Travaux préparatoires
According to François Bugnion, the travaux préparatoires to the Geneva Conventions are not conclusive when it comes to construing the scope of CA 1. He asserts that both the internal and external aspects of the duty to ensure respect were put forward and that the Diplomatic Conference of 1949 did not find it necessary to decide between them. The formulation retained would permit both interpretations.Footnote 17 Frits Kalshoven has gone one step further by stating that nothing in the travaux préparatoires justifies an interpretation of CA 1 whereby third States have an international legal obligation to ensure respect for the Geneva Conventions in conflicts to which they are not a party.Footnote 18
In his analysis of the drafting history of CA 1, Kalshoven concluded that the drafters did not intend an interpretation whereby the phrase “to ensure respect” implied that each High Contracting Party undertook to ensure respect by all other parties.Footnote 19 In his view, there is “simply nothing to suggest that the authors of the proposed text, with Claude Pilloud as the key figure among them, were thinking along those lines”.Footnote 20 Kalshoven considers that CA 1 simply sought to address the issue of implementation of the Geneva Conventions in the event of non-international armed conflict (NIAC) – that is, to ensure that the non-State party to a NIAC also respects the basic precepts of IHL.Footnote 21
The admittedly scarcely documented drafting history can also be understood differently. The obligation to ensure respect was first introduced in the opening articles of each one of the Draft Revised or New Conventions for the Protection of War Victims submitted by the ICRC to the Stockholm International Conference of the Red Cross in 1948.Footnote 22 The ICRC established the drafts with the assistance of government experts, National Red Cross Societies and other humanitarian associations.Footnote 23 The final text, presented in the form of a booklet, contained both the proposed articles and details on the meaning and justification of each provision. The exact proposed wording of CA 1 was the following:
The High Contracting Parties undertake, in the name of their peoples, to respect, and to ensure respect for the present Convention in all circumstances.
Next to this text, the ICRC introduced a series of remarks. The booklet was made available to all National Red Cross Societies and governments participating at the Stockholm Conference.Footnote 24 Due to its importance to understanding the original meaning of the obligation to ensure respect, it is worth reproducing the remarks made to CA 1 in their entirety (emphasis added):
The ICRC believes that this Article, the scope of which has been widened, should be placed at the head of the Convention. The new wording covers three points:
(1) The undertaking subscribed to by High Contracting Parties to respect the Convention in all circumstances.
(2) The undertaking subscribed to by the High Contracting Parties to ensure respect for the Convention in all circumstances.
(3) A formal declaration stating that the two above undertakings are subscribed to by Governments in the name of their peoples.
Re (1) This stipulation corresponds to Art. 25, Sec. 1, of the 1929 Convention.
Re (2) The ICRC believes it necessary to stress that if the system of protection of the Convention is to be effective, the High Contracting Parties cannot confine themselves to implementing the Convention. They must also do everything in their power to ensure that the humanitarian principles on which the Convention is founded shall be universally applied.
Re (3) By inviting the High Contracting Parties to make formal declaration of their undertaking, in the name of their peoples, the ICRC aims at associating the peoples themselves with the duty of ensuring respect for the principles on which the present Convention is founded, and of implementing the obligations which result therefrom. Another advantage of the present wording will be to facilitate the implementing of the present Convention, especially in case of civil war.Footnote 25
Kalshoven argues that the authors used the word “universal” as a way to ensure compliance with the Geneva Conventions by all parties to a NIAC.Footnote 26 He submits that “for a concept belonging to the realm of international relations to figure without explanation between two elements relating to the domestic level would be very strange indeed”.Footnote 27 Kalshoven also considers that
precious little had … remained of the original motives behind … the new draft Article 1. For its authors, its main raison d’être now appeared to lie in getting populations involved in the process of creating and maintaining respect for the principles embodied in the Conventions, thus binding them to such respect even in time of civil war or non-international armed conflict.Footnote 28
The following elements, it is submitted, may also prompt a different understanding of the underlying intent:
1. The draft Article 2 presented to the Stockholm Conference by the ICRC already dealt with the issue of civil war (in paragraph 4), explicitly stating the binding nature of the obligation to respect for IHL for all parties to a NIAC; and draft Article 1, by maintaining the notion of “to respect the Conventions in all circumstances”, coupled with a statement in draft Article 2 confirming that the clausula si omnes contained in earlier IHL treaties would not govern the relations of parties to an armed conflict (in paragraph 3), restated the principle of non-reciprocity.Footnote 29 At the same time, the remarks made by the ICRC with regard to CA 1 (see above) began by spelling out that the scope of this provision was wider than that of its equivalents in the 1929 Geneva Conventions. Since both the principle of non-reciprocity and the issue of civil war were being dealt with elsewhere, one must presuppose that this enlarged scope mainly referred to the obligation to ensure respect universally.
2. The third paragraph of the remarks made by the ICRC already dealt with the issue of non-international armed conflict. Thus, the second paragraph thereof must have a different scope.
3. The ordinary meaning of the term “universal” used in the ICRC remarks is particularly univocal and one can comfortably assert that, at least in the domain of international law, it means the very opposite of domestic. Scholars like Eric David agree with the reading that a universal application of CA 1 can obviously not be restricted to a national level.Footnote 30 The Stockholm text and the related remarks may therefore well be read with such a wider understanding.
The travaux préparatoires of the 1949 Diplomatic Conference show that there was very little discussion on the issue of CA 1. Only Italy, Norway, the United States, the ICRC and France took the floor during the deliberations at the Special Committee.Footnote 31 Mr Maresca, representing Italy, pointed out that the obligation to ensure respect was “either redundant or introduced a new concept into international law”.Footnote 32 As shown above, there are good reasons to believe that the latter is true – otherwise, if it would merely have been redundant, one might have expected a deletion. The delegates from Norway and the US highlighted that the object of CA 1 was to ensure respect “by the population as a whole”, without elaborating on the issue.Footnote 33 After that, Mr Pilloud, on behalf of the ICRC, pointed out that
in submitting its proposals to the Stockholm Conference, the International Committee of the Red Cross emphasized that the Contracting Parties should not confine themselves to applying the Conventions themselves, but should do all in their power to see that the basic humanitarian principles of the Conventions were universally applied.Footnote 34
None of the delegates opposed this statement, nor did they raise any issues regarding their accord – or discord – with the statements made by Norway, the US and the ICRC.Footnote 35 It may therefore be assumed that the universal application of a treaty should not be restricted to the domestic level.Footnote 36 Since a draft with clarifying remarks had been distributed to all the participants – and taking into consideration that a straightforward statement as to its meaning had also been made by the ICRC – it is unlikely that delegates had a narrow understanding of the undertaking to ensure respect. They chose a broad formulation that accommodates an external scope, be it in terms of an entitlement or a duty.
Interestingly, the Commentaries to the Geneva Conventions published by the ICRC in the 1950s support the view that CA 1 imposes an obligation to ensure respect by others:
[I]n the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally.Footnote 37
Finally, the system of protection underpinning the Geneva Conventions as a whole seems to run counter to the arguments of those who dispute the external element of the obligation in CA 1. As pointed out by Fréderic Siordet:
The monstrous character of certain violations of the Conventions committed [during the Second World War] where there had been no scrutiny led to a modification of the very idea of scrutiny. It was no longer merely a question of recognizing the legitimate right of a belligerent to see that the Conventions were applied, and to facilitate his doing so. For the private right of belligerents was substituted the general interest of humanity, which demanded scrutiny, no longer as a question of right, but of duty.Footnote 38
Siordet puts forward the existence of the Protecting Powers in Articles 10/10/10/11 of the Geneva Conventions as an example of a provision strengthening CA 1.Footnote 39 He adds that the legal obligations imposed upon the parties to a conflict no longer seem sufficient by themselves, which is why the Geneva Conventions “seek … in addition to provide for scrutiny and cooperation from outside the Parties to the conflict”.Footnote 40 Indeed, the need for supervision had already been discussed at the 1929 Diplomatic Conference, but it was only fully developed and made mandatory in the Geneva Conventions of 1949.Footnote 41
At any rate, the acceptance of an obligation to ensure respect by others for both international and non-international armed conflicts was expressly acknowledged after the adoption of the Geneva Conventions and is also what emanates from an analysis of the (more relevant) subsequent practice in the application of the treaty.Footnote 42
Sixty years of State practice
In the first years after the adoption of the Geneva Conventions, the idea of third-party responsibility did not arouse much interest among government officials or even among scholars. It was only in 1968, in Tehran, that the United Nations (UN) International Conference on Human Rights, in the preamble to Resolution XXIII, reminded States party to the Geneva Conventions of their responsibility to “take steps to ensure respect of these humanitarian rules in all circumstances by other States, even if they are not themselves directly involved in an armed conflict.”Footnote 43 Although the resolution was adopted by sixty-seven votes to none, with two abstentions, it is not absolutely clear whether the term “responsibility” referred to a legal obligation or something less.Footnote 44 However, the vast array of subsequent practice supports the imperative nature of the duty to ensure respect for States that are not party to an armed conflict.
The International Court of Justice (ICJ) has, on various occasions, asserted the imperative nature of the obligation to ensure respect. In the Nicaragua case, the Court considered that even though the United States was not a party to the NIAC, it had an obligation to ensure respect for the Geneva Conventions in all circumstances.Footnote 45 It further added that this obligation did “not derive only from the Conventions themselves, but from the general principles of humanitarian law”.Footnote 46 In its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court underscored that “every State party to [the Fourth Geneva 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”.Footnote 47
Together with the ICJ, both the Security Council and the General Assembly have issued a myriad of resolutionsFootnote 48 reaffirming the existence of a legal obligation for third States to ensure respect for IHL in conflicts to which they are not a party.Footnote 49 For instance, the Security Council has called upon third States to ensure compliance with IHL in Israel/Palestine,Footnote 50 Bosnia and HerzegovinaFootnote 51 and Rwanda.Footnote 52 Furthermore, in a report submitted to the Security Council by the Secretary-General, it was unambiguously affirmed that:
Under [the Fourth Geneva Convention], each Contracting State undertakes a series of unilateral engagements, vis-à-vis itself and at the same time vis-à-vis the others, of legal obligations to protect those civilians who are found in occupied territories following the outbreak of hostilities … the Security Council should consider making a solemn appeal to all the High Contracting Parties to the Fourth Geneva Convention that have diplomatic relations with Israel, drawing their attention to their obligation under article 1 of the Convention to “… ensure respect for the present Convention in all circumstances” and urging them to use all the means at their disposal to persuade the Government of Israel to change its position as regards the applicability of the Convention.Footnote 53
A similar appeal was made in Resolution 45/69 of December 1990, entitled “The Uprising (Intifadah) of the Palestinian People”. Therein, the General Assembly not only requested the Occupying Power to abide by the provisions of the Fourth Geneva Convention, but also called upon all States party to that Convention “to ensure respect by Israel … for the Convention in all circumstances, in conformity with their obligation under article 1 thereof”.Footnote 54 The same body has approved other quasi-identical resolutions in the last two decades.Footnote 55
Within the framework of the United Nations, such appeals have also been issued by the Sub-Commission on Human RightsFootnote 56 and the Commission on Human Rights,Footnote 57 as well as its successor the Human Rights Council.Footnote 58
The participants in the Diplomatic Conference of Geneva of 1974–1977 also included the obligation to ensure respect in Article 1(1) of the First Additional Protocol to the Geneva Conventions of 1949 and, as pointed out by Levrat, they decided to do so “with full knowledge of the facts”.Footnote 59 In 1993, the Final Declaration of the International Conference for the Protection of War Victims reiterated that the responsibility to respect and ensure respect encompassed the need to guarantee “the effectiveness of international humanitarian law and take resolute action, in accordance with that law, against States bearing responsibility for violations of international humanitarian law with a view to terminating such violations”.Footnote 60 Two years later, in 1995, Resolution 1 of the 26th International Conference of the Red Cross and Red Crescent, which was adopted by consensus, reaffirmed that “every State must respect in all circumstances the relevant principles and norms of humanitarian law and … must ensure respect for the Conventions and Protocols”, thus leaving no doubt as to the imperative nature of this obligation.Footnote 61
The ICRC has consistently and publicly emphasized this aspect of CA 1 and reminded States of their obligations thereunder. It has taken a number of steps, confidentially or publicly, individually or generally, to encourage States, including those not party to a conflict, to use their influence or offer their cooperation in order to ensure respect for IHL.Footnote 62 When it is deemed necessary in the interest of the victims to appeal to the responsibility of all High Contracting Parties regarding a specific situation, the ICRC chooses from a range of possibilities at its disposal, among which is the quite exceptional measure of making a public appeal. Appeals to High Contracting Parties expressly referring to CA 1 were made by the ICRC, for example, in 1974 (Middle East), in 1979 (Rhodesia/Zimbabwe), in 1980 (Afghanistan), in 1983 and again in 1984 (Iran and Iraq), in 1992 (Bosnia-Herzegovina) and in 1995 (Rwanda). Moreover, in a series of regional expert seminars organized by the ICRC in 2003 as preparation for the 28th International Conference of the Red Cross and Red Crescent, participants confirmed that by virtue of CA 1 third States are bound not only by a negative legal obligation to neither encourage a party to an armed conflict to violate IHL nor to take action that would assist in such violations, but also by a positive obligation to take appropriate action – unilaterally or collectively – against parties to a conflict who are violating IHL.Footnote 63
It has often been said that, due to the intrinsically confidential nature of the diplomatic machinery involved, it is difficult to record practice of individual States illustrating this obligation to ensure respect by third parties.Footnote 64 Scholars in the early 1990s, in particular, therefore voiced a word of caution as to whether governments felt themselves obliged to intervene when a party to an armed conflict violated IHL.Footnote 65 However, such passiveness was deemed “hard to justify, or even to understand”, considering the undeniable external component of the rule.Footnote 66 As of today, thanks to an ever-growing tendency that has been gaining momentum over the last two decades, it is doubtful that one can keep questioning the lack of State practice illustrating this duty. Interestingly, in this respect, the EU felt the need to adopt guidelines on promoting compliance with IHL.Footnote 67 As indicated under the section on purpose, it is emphasized that the “[g]uidelines are in line with the commitment of the EU and its Member States to IHL, and aim to address compliance with IHL by third States, and, as appropriate, non-State actors operating in third States”. The guidelines also state means of action at the disposal of the EU in relation to third countries.
Other, more contextual State practice also illustrates a sense of positive duty.Footnote 68 For instance, in 1980, the member States of the European Economic Community (ECC), predecessor of the European Union, issued a joint statement, known as the Venice Declaration, considering that Israeli settlements were illegal under international law. Through the Venice Declaration, the ECC “stress[ed] the need for Israel to put an end to the territorial occupation which it has maintained since the conflict of 1967”.Footnote 69 Since then, numerous European institutions, such as the European Council,Footnote 70 the European CommissionFootnote 71 and the Council of the European Union,Footnote 72 as well as many EU representatives,Footnote 73 have repeatedly – and publicly – emphasized that the building of settlements anywhere in the Occupied Palestinian Territories, including East Jerusalem, is prohibited by IHL.
Continued violations of human rights and IHL in the Darfur region led the United States to put in place a series of economic sanctions against Sudan. In particular, the United States imposed a trade embargo against Sudan, prohibited the importation of goods and services of Sudanese origin, and put into effect “targeted sanctions against individuals and entities contributing to the conflict in the Darfur region.” Footnote 74 At any rate, as it will be seen below, economic sanctions are but one of the means available to ensure respect by others.
On the occasion of the armed conflict in Libya in 2011, countries from all over the world condemned indiscriminate attacks causing death among the civilian population and urged the Libyan government to respect IHL;Footnote 75 in February 2011 the European Union approved a package of sanctions against Libyan leaders, including an arms embargo and a travel ban.Footnote 76
The current armed conflict in Syria has also given rise to a variety of situations in which third States have endeavoured to ensure respect for IHL by the belligerents. In May 2012, following the killing of civilians in the Syrian city of Houla, almost a dozen countries from the Americas, Europe and Australia expelled all Syrian diplomats from their respective territories as a means of protest.Footnote 77 The EU (in association with various candidate and non-EU States) has referred explicitly to CA 1 in its diplomatic démarches to put an end to the “terrible” IHL violations committed in Syria, such as the denial of humanitarian assistance, the attacks against humanitarian workers, the use of siege and starvation as a method of warfare, indiscriminate attacks causing death among the civilian population and the recruitment of children into the armed forces:
The lack of respect for international humanitarian law and human rights is appalling and concerns us all … Common article 1 of the Geneva Conventions clearly requires that all the contracting Parties, and I quote, “undertake to respect and to ensure respect” for the conventions “in all circumstances”. Thus, it is a collective obligation on all of us not only to respect but also to ensure that the parties to the conflict respect their humanitarian obligations. We need to ensure actual enforcement of the obligations.Footnote 78
All in all, taking into consideration both the drafting history of CA 1 and the subsequent practice of States, international tribunals and intergovernmental organizations,Footnote 79 States not party to an armed conflict have a legal obligation to ensure respect for the Geneva Conventions, and for applicable IHL more broadly,Footnote 80 through taking positive steps. What needs to be elucidated are the exact nature and extent of this legal obligation.
Nature of the obligation to ensure respect
Article 48 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts provides that any State other than an injured State is entitled to invoke the responsibility of another State if the obligation in question is “owed to the international community as a whole” – this is indeed the case with the Geneva Conventions, which lay down legal obligations of an erga omnes nature.Footnote 81 That said, the obligation to ensure respect in its external dimension, imposed by CA 1, is distinct from the right of third States to act vis-à-vis the breach of erga omnes obligations under public international law.Footnote 82 As shown in previous sections – and as can be seen from a significant amount of verbal State practice as expressed in international organizations/fora and elsewhere – CA 1 goes beyond an entitlement for third States to take steps to ensure respect for IHL. It establishes not only a right to take action, but also an international legal obligation to do so. The words “ensure respect” imply an active duty and the term “undertake” suggests a genuine obligation,Footnote 83 and this applies to all aspects of CA 1 – both the internal and the external component. The Commentaries on the Geneva Conventions, when it comes to the imperative nature of the undertaking to ensure respect by others, assert that CA 1 is not a stylistic clause but a provision invested with imperative force.Footnote 84 A similar reading regarding the binding nature of the word “undertake” is made by the Commentaries on AP I,Footnote 85 as well as by the ICJ in the context of the Genocide Convention.Footnote 86 Furthermore, this is also what can be deduced from the language of the international rulings, resolutions and statements analysed in the previous section. Thus, the question at this point is not so much whether CA 1 imposes a binding obligation, but rather what type of obligation lies beneath it.
A duty of diligent conduct
International obligations – as well as domestic ones – can be divided into two types.Footnote 87 On the one hand, there are obligations of result, which imply that a State must attain a specific outcome. On the other hand, there exist obligations of means, also called obligations of due diligence, where States are only obliged to follow a certain conduct, regardless of whether they attain the desired result or not. In summary, “the obligation of result is an obligation to ‘succeed’, while the obligation of diligent conduct is an obligation to ‘make every effort’”.Footnote 88 Some authors have considered that High Contracting Parties might be held liable for failure to fulfil their CA 1 obligation until the desired result of ensuring respect for the Geneva Conventions in all circumstances is achieved.Footnote 89 However, this can hardly be the case. A State not party to a specific armed conflict cannot be said to be under an obligation to reach a particular outcome – for example, the cessation of all IHL violations by a belligerent – with regard to that conflict. On the contrary, third States can only be under an obligation to exercise due diligence in choosing appropriate measures to induce belligerents to comply with the law. This does not turn the duty to ensure respect into a vacuous norm, since States are under the obligation, depending on the influence they may exert, to take all possible steps, as well as any lawful means at their disposal, to safeguard respect for IHL rules by all other States.Footnote 90 If they fail to do so, they might incur international responsibility. In this sense, it should be highlighted that the intricateness of international relations, including the political dynamics to which a State might be subject, does not diminish the validity of this obligation.Footnote 91 In fact, the opposite is true: a State with close political, economic and/or military ties (for example, through equipping and training of armed forces or joint planning of operations) to one of the belligerents has a stronger obligation to ensure respect for IHL by its ally.Footnote 92 This is precisely the underlying logic of CA 1, as well as of other IHL rules in which close ties between two States lead to the reinforcement of their exiting obligations.Footnote 93
Further guidance for the purposes of CA 1 can be drawn from the ICJ in the case Bosnia and Herzegovina v. Serbia and Montenegro. Therein, the ICJ found that the legal obligation to prevent genocide enshrined in Article 1 of the Genocide Convention was also one of due diligence. With regard to the due diligence standard, it held that States are obliged to use “all means reasonably available to them” and that a State incurs responsibility only if it has “manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide”.Footnote 94 The ICJ further added that due diligence can only be assessed in concreto.Footnote 95 This is the case with any obligation of due diligence,Footnote 96 including the duty to ensure respect for IHL by others.Footnote 97 Thus, only a case-by-case analysis can reveal whether a State has actually violated CA 1. For that purpose, together with the capacity to influence the parties to the conflict, it is important to take into consideration the seriousness of the potential violation.Footnote 98 For instance, a non-belligerent State C could hardly justify its passiveness vis-à-vis grave breaches of the Geneva Conventions committed by State A against State B, in particular if State C has a “special relationship” with State A.Footnote 99 Such a special relationship is even more pronounced if third States provide support, directly or indirectly, to a party to an ongoing armed conflict.
Possible measures to ensure respect
As for the possible measures for ensuring compliance with IHL available to States not party to an armed conflict, these can be classified into three broad categories.Footnote 100 First, measures aimed at exerting diplomatic pressure: these include, inter alia, protests lodged with the corresponding ambassador, public denunciations, pressure through intermediaries and/or referral to the International Fact Finding CommissionFootnote 101 – in the event that both States have accepted its competence – or the International Criminal Court. Second, coercive measures taken by the State itself, such as measures of retorsion: the above-mentioned expulsion of Syrian diplomats might fall under this category. Third are measures taken in cooperation with an international organization.Footnote 102
Of course, States are free to choose among the different measures at their disposal. Nevertheless, CA 1 should not be used to justify a so-called “droit d'ingérence humanitaire”.Footnote 103 In principle, permitted measures must be limited to “protest, criticism, retorsions or even non-military reprisals”.Footnote 104 Armed intervention may only be decided within the context of the UN, and in full respect of the UN Charter.Footnote 105 The rules on the resort to armed force (jus ad bellum) govern the legality of any use of force, even if it is meant to end serious violations of IHL. The content of CA 1 is not part of jus ad bellum and thus cannot serve as a legal basis for the use of force.
Failing to take measures will give rise to the international responsibility of the third State only when its conduct cannot be deemed diligent. What needs to be proved is the inconsistency between the State's actual conduct and the conduct demanded by the “due diligence standard”.Footnote 106 Needless to say, the burden of proof is higher than in the case of obligations of result, where it suffices to demonstrate that the outcome required by the norm has not been reached. An additional hurdle exists in the case of the obligation to ensure respect, since diplomatic démarches are often conducted bilaterally and discretely. Be that as it may, holding third States accountable for their failure to ensure compliance with IHL is more than a conjectural speculation – supposing, that is, that they do not meet the adequate “due diligence standard”. It remains to be seen what elements compose that standard.
Specific content of the obligation to ensure respect
In the Nicaragua case, the ICJ considered that, by virtue of the duty to ensure respect, the United States was “under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of [common Article 3 to the Geneva Conventions]”.Footnote 107 Since then, it has often been repeated that CA 1, as well as the general principles of humanitarian law to which it gives expression, prohibits third States from encouraging the parties to a conflict to violate IHL. As pointed out by Meron, the well-grounded principles of good faith and pacta sunt servanda impose upon States party to the Geneva Conventions not only a duty to abide by their own obligations, but also a duty not to encourage other parties to violate theirs.Footnote 108 Furthermore, according to the general regime of State responsibility, third States are under the obligation not to knowingly aid or assist in the commission of IHL violations.Footnote 109 They also must refrain from recognizing as lawful any situation created by a serious breach of peremptory norms of IHL.Footnote 110 All of these obligations can be considered negative duties, and even if CA 1 did not exist, they would flow from other norms of international law.Footnote 111 To give but one example, such negative duties could arise in multinational operations. High Contracting Parties would be prevented from carrying out joint operations with other States if there was an expectation that these States would act in violation of the Geneva Conventions or other relevant norms of IHL, unless they took active measures to ensure respect therewith. Such measures to ensure respect could include joint planning, training or mentoring programmes. This logic lies at the heart of UN Security Council Resolution 1906,Footnote 112 which reiterated that
the support of MONUC [United Nations Organization Stabilization Mission in the DRC] to FARDC-led [Armed Forces of the DRC] military operations against foreign and Congolese armed groups is strictly conditioned on FARDC's compliance with international humanitarian, human rights and refugee law and on an effective joint planning of these operations.Footnote 113
However, the fact that these negative duties emanate from public international law, together with the above-mentioned practice, as well as the fact that CA 1 uses the term “ensure” in the active voice, indicates that the scope of the obligation to ensure respect is “undoubtedly larger than simply ‘not encouraging’”,Footnote 114 and also includes a series of positive obligations.
Stopping IHL violations
To start with, High Contracting Parties have a duty to exert their influence/take appropriate measures to put an end to ongoing IHL violations. This aspect of CA 1 is the basis for Rule 144 identified in the ICRC Customary Law Study, which provides, inter alia, that States “must exert their influence, to the degree possible, to stop violations of international humanitarian law”.Footnote 115
The above-mentioned abstract from the Commentaries to the Geneva Conventions already established that in the event of a belligerent failing to fulfil its obligations, third States have an obligation to “endeavour to bring it back to an attitude of respect for the Convention”.Footnote 116Prima facie, the idea of bringing back one of the parties to the conflict to an attitude of respect implies that a violation of IHL has previously taken place. The Commentary to the First Additional Protocol equally echoed this aspect of the obligation.Footnote 117 According to expert participants in the five seminars organized by the ICRC in 2003 on the issue of improving compliance with IHL, States not involved in an armed conflict have a positive obligation to “take action … against States who are violating international humanitarian law, in particular to intervene with States over which they might have some influence to stop the violations”.Footnote 118
Such an obligation to stop IHL violations is evidenced specifically in Article 89 of AP I, which provides that “[i]n situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Charter”.
Many of the examples of State practice mentioned above were actually aimed at putting an end to situations that contravened basic humanitarian norms and, as shown by the ICRC Customary Law Study, they account for a well-grounded legal obligation. But going one step further, it is worthwhile pondering whether, in addition to requiring third States to exert their influence/take appropriate measures to bring ongoing violations to an end, the duty to ensure respect in its external dimension also includes a preventive component.
Preventing IHL violations
If one looks at CA 1 against the backdrop of the atrocities committed during the Second World War, and in the light of its object and purpose, there are strong arguments that support an undertaking to prevent violations of the Conventions. An illustration of the eagerness of States at the time of negotiating the Geneva Conventions to avoid falling back into the scourges of the Second World War is manifest in Article 1 of the Genocide Convention, adopted only a few months earlier than the Geneva Conventions. In that Article, the “Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish”. Looking at that provision, the ICJ held that the word “undertake” – the same used by CA 1 – sets a legally binding obligation,Footnote 119 and asserted that the obligation of States was one of conduct, which could be breached if they failed to take all measures within their power to prevent genocide.Footnote 120 Interestingly, the ICJ further added that claiming, or even proving, that the means reasonably at the disposal of a State were insufficient was irrelevant for the purposes of breaching the obligation, since “the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result – averting the commission of genocide – which the efforts of only one State were insufficient to produce”.Footnote 121 It is submitted that this whole framework is indeed similar to the one underpinning CA 1, and which Pilloud described as an obligation for all High Contracting Parties to “do all in their power to see that the basic humanitarian principles of the Conventions were universally applied”.Footnote 122
Several scholars have posited that the obligation to ensure respect includes a duty to take measures to prevent IHL violations. For instance, Devillard argues that although reacting to illicit conduct – that is, stopping ongoing breaches of a rule – constitutes the “heart” of CA 1, the role of prevention should not be neglected.Footnote 123 He adds that the consequences of IHL violations are often too serious to simply accept “a posteriori interventions”.Footnote 124 Although, according to Devillard, a general obligation of prevention incumbent on third States can be excluded, an obligation to prevent IHL violations would be triggered in situations where the risk of such violations can be reasonably foreseen.Footnote 125 In his analysis of the erga omnes obligation to ensure respect by others, Gasser refers not only to stopping violations, but also to “prevent[ing] further breaches from happening” and “act[ing] when parties to an armed conflict are likely to disregard the law or are about to violate their humanitarian obligations”.Footnote 126 Other authors seem to go even further when they frame CA 1 primarily as a duty to “avert the occurrence of violations”, instead of only acting at the stage at which the misbehaviour has already taken place.Footnote 127 It is not possible in abstract to elucidate the criteria under which non-belligerent States could incur international responsibility for their failure to prevent the violation of IHL rules. At any rate, it is clear that this obligation, being one of due diligence, only arises in cases in which the prospective inobservance of IHL is marked by a certain degree of predictability. That is why Gasser resorts to the idea of likelihood and Devillard to foreseeable risk. Indeed, under international law, due diligence obligations involving the need to prevent a particular event can only be triggered if the event in question is actually foreseeable.Footnote 128
The High Contracting Parties themselves have also endorsed this interpretation of CA 1 during the 30th International Conference of the Red Cross and Red Crescent, where they stressed
the obligation of all States to refrain from encouraging violations of international humanitarian law by any party to an armed conflict and to exert their influence, to the degree possible, to prevent and end violations, either individually or through multilateral mechanisms, in accordance with international law.Footnote 129
Moreover, UN pronouncements also point in this direction. For instance, a Security Council resolution from 1990 dealing inter alia with the intention of the government of Israel “to resume”Footnote 130 the deportation of Palestinian civilians in the occupied territories – that is, a potential IHL violation which had not yet occurred – called upon “the High Contracting Parties to [the Fourth Geneva Convention of 1949] to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with Article 1 thereof”.Footnote 131 In such instances, the obligation to ensure respect should clearly be seen through the prism of prevention.
As a matter of fact, the duty to ensure respect by others has been conceived of as a general principle informing the entire field of IHL implementation.Footnote 132 In this sense, it is interesting to note that measures to enforce IHL usually revolve around the concepts of repression and prevention,Footnote 133 and that in fact, according to Marco Sassòli, the focus between these two elements must always be placed on the latter.Footnote 134 Thus, considering this preventive component as part of the duty to ensure respect would be coherent not only with the means whereby IHL is usually implemented,Footnote 135 but also with the manner in which CA 1 itself has often been framed.Footnote 136
All in all, and despite the need for further State practice and academic research elucidating the scope of this international legal obligation, it seems that prevention is inextricably intertwined with the duty to ensure respect. Failing to acknowledge this preventive aspect would probably be inconsistent with the raison d’être of the Conventions, one of their main goals being to forestall the transgression of their rules. In fact, CA 1 is only one of the mechanisms envisioned by the drafters of the Geneva Convention to attain this objective. Other examples include:
1. The supervisory role of the Protecting Powers.Footnote 137
2. The obligation to disseminate the content of the Geneva Conventions as widely as possible, “in time of peace as in time of war”.Footnote 138
3. The obligation to enact legislation to provide effective penal sanctions for and to repress grave breaches of the Geneva Conventions and AP I.Footnote 139
4. The obligation to “take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than … grave breaches”.Footnote 140 According to the Commentaries, the latter implies that States must do all they can to prevent the commission or repetition of acts contrary to the Conventions.Footnote 141
Moreover, part of the reason why States must bring ongoing IHL abuses to an end – in conformity with CA 1 – is also to prevent them from occurring again in the future.Footnote 142
Hence, it seems that CA 1 can and must be raised on its own whenever it helps to safeguard respect for the Geneva Conventions, and arguably for the whole body of IHL, including when it comes to the obligation to prevent violations of its rules. A very clear example thereof can be found in the context of the Arms Trade Treaty (ATT). Footnote 143
The ATT and the obligation ensure respect
Modern efforts to control the humanitarian consequences of the arms trade can be traced back to the Brussels Conference Act of 1890. Therein, approximately twenty nations prohibited the introduction of firearms and ammunition to the Congo basin, with a view to curbing their “pernicious and prevailing role” in the slave trade and wars in Africa.Footnote 144 Since then, international law has struggled to find an adequate balance between the legality of arms and the need to rein in some of their more deleterious effects. This debate has been gaining momentum in the last fifteen years, culminating with the recent adoption of the ATT.
In 1998, over twenty like-minded States gathered in Oslo for the first time to specifically discuss the challenges raised by the spread of small arms.Footnote 145 They drew up a document wherein they recognized the humanitarian and security concerns linked to the arms trade and enumerated a series of existing norms that needed to be developed in order to address the problem. In particular, they referred to the obligation to respect and ensure respect for IHL.Footnote 146 A year later, in a study entitled Arms Availability and the Situation of Civilians in Armed Conflict, the ICRC, concerned about “the proliferation of weapons in the hands of new and often undisciplined actors”,Footnote 147 recommended that States “review their policies concerning the production, availability and transfer of arms and ammunition” in light of their responsibility under CA 1.Footnote 148 Since then, numerous codes of conduct on arms exports have incorporated compliance with IHL as part of their criteria for authorizing transfers. For instance, the Organization for Security and Cooperation (OSCE) Document on Small Arms and Light Weapons requires participating States to avoid issuing licenses for exports where they deem that there is a “clear risk” that the arms in question might “threaten compliance with international law governing the conduct of armed conflict”.Footnote 149 Instruments laying down similar criteria include the Organization of American States (OAS) Model Regulations for the Control of Brokers of Firearms,Footnote 150 the Economic Community of West African States (ECOWAS) Convention on Small Arms and Light WeaponsFootnote 151 and the Best Practice Guidelines for the Implementation of the Nairobi Declaration.Footnote 152 All of these conventions and guidelines tend to focus on the likelihood of prospective IHL violations in order to establish whether weapons can be legitimately transferred. Thus, their main focus is to “avert the occurrence” of such abuses in the future – that is, to prevent them. Footnote 153
During the 28th International Conference of the Red Cross and Red Crescent, the High Contracting Parties to the Geneva Conventions endorsed a similar interpretation of the role played by CA 1 vis-à-vis the prevention of IHL violations in this domain:
In recognition of States' obligation to respect and ensure respect for international humanitarian law, controls on the availability of weapons are strengthened – in particular on small arms, light weapons and their ammunition – so that weapons do not end up in the hands of those who may be expected to use them to violate international humanitarian law.Footnote 154
The UN General Assembly gave further impulse to these efforts by adopting Resolution 61/89 of 2006, where it requested the creation of a group of experts to examine the “feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms”.Footnote 155 However, even at that time, it was clear that – from an IHL perspective – if the ATT negotiations succeeded, the new legal instrument would only complement the already existing obligation to ensure respect by others.Footnote 156 That is precisely the reason why a solid majority of States supported from the outset the view that respect for IHL should become one of the main criteria in the assessment of arms transfers within the treaty.Footnote 157 As a matter of fact, evaluating the level of respect for IHL before authorizing the export of arms has been considered an international legal obligation of a customary nature.Footnote 158
The ATT was adopted by the UN General Assembly in April 2013.Footnote 159 It included a very explicit reference to CA 1. Indeed, the duty to “[r]espect[] and ensur[e] respect for international humanitarian law in accordance with, inter alia, the Geneva Conventions of 1949” was deemed one of the fundamental principles pervading the whole document.Footnote 160 Against the backdrop of this principle, Article 6(3) of the ATT established that a State Party must not authorize any transfers of conventional arms if it has knowledge that the weapons would be used in the commission of grave breaches to the Geneva Conventions of 1949, attacks against civilians or civilian objects, or other war crimes as defined by international agreements to which it is a party. Even if the export is not prohibited under Article 6, the following Article prohibits transfer if there is an “overriding risk” that the weapons might be used to commit or facilitate a serious violation of IHL.Footnote 161 As for the criteria States may use to assess the risk of transferring arms or military equipment, the ICRC has proposed a variety of indicators that include the recipient's past and present IHL record, the recipient's alleged intentions – as expressed through its own commitments – and the recipient's capacity to ensure that the weapons in question are not used in a manner that is inconsistent with IHL.Footnote 162
It should be noted that, as previously seen, the obligation to ensure respect cannot be circumscribed to the mere prohibition of aiding or assisting in the commission of IHL violations.Footnote 163 Therefore, in the context of arms transfers, CA 1 also prescribes a series of positive obligations that go beyond the wording of Article 16 of the Draft Articles on Responsibility of States. According to the International Law Commission, aid or assistance are only unlawful when the assisting State has knowledge of the circumstances that make the conduct illegal and decides to carry out such conduct with a view to facilitating the violation. In the case of arms exports, Draft Article 16 can be translated in the following manner: State C would only incur international responsibility if it sells weapons to State A in order to facilitate the infringement of IHL against State B, and with knowledge that the weapons will be used for such purpose. In contrast, CA 1 would require State C to assess whether State A is likely to use the weapons to violate IHL in an armed conflict with State B, and to refrain from transferring the arms if there is a substantial or clear risk that they could be used in that manner.Footnote 164
At any rate, the legal debate that led to the adoption of the ATT is but one example of the ways in which CA 1 can contribute to endeavours to improve compliance with IHL. There can be no doubt as to the great potential of the duty to ensure respect by others when it comes to enforcing IHL rules in other domains – for instance, by clarifying the obligation of multinational forces during the transfer of detainees.Footnote 165
Conclusion
CA 1 epitomizes the commitment of States to avoid IHL violations taking place in the future. It does so by creating a framework whereby States not party to a particular armed conflict must use every means at their disposal to ensure that the belligerents comply with the Geneva Conventions and AP I, and probably with the whole body of IHL.Footnote 166 As shown by this article, CA 1 is not a mere entitlement to act. Instead, it imposes upon third States an international legal obligation to ensure respect in all circumstances. This obligation, which applies in international and non-international armed conflicts, is one of due diligence: to avoid breaching it, States must make every lawful effort in their power, regardless of whether they attain the desired result or not. For that purpose, they can choose among the different means at their disposal – with the exception of military intervention, which would only be lawful if undertaken in accordance with the UN Charter. That said, as in many other branches of international law, the larger the means, the greater the responsibility.
With regard to the content of the obligation to ensure respect in its external dimension, CA 1 clearly includes a duty of third States not to encourage persons or groups engaged in an armed conflict to act in violation of the Geneva Conventions, nor to knowingly aid or assist in the commission of such violations. Nonetheless, CA 1 goes well beyond this negative duty. Firstly, it includes an obligation to put an end to ongoing IHL violations. Secondly, the obligation to ensure respect encompasses the duty to prevent breaches of IHL from occurring.
In a world where compliance with existing rules seems to be the main hurdle to limiting the effects of armed conflict and to adequately protecting persons who are not or are no longer participating in hostilities, underscoring the preventive component of the legal obligation established by CA 1 is of paramount importance. Third States, thanks to their more neutral stance vis-à-vis the dynamics of the conflict, are in a privileged position to ensure that the “general principles of humanitarian law to which the Conventions merely give specific expression”Footnote 167 are respected universally. It can only be hoped that they will live up to the commitment they made when they subscribed to a body of law whose main purpose is precisely to prevent violations of the very same rules it enunciates.
