Ensuring Respect for International Humanitarian Law

Eve Massingham, Annabel McConnachie, Eve Massingham, Annabel McConnachie

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429588754
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book explores the nature and scope of the provision requiring States to 'ensure respect' for international humanitarian law (IHL) contained within Common Article 1 of the 1949 Geneva Conventions. It examines the interpretation and application of this provision in a range of contexts, both thematic and country-specific. Accepting the clearly articulated notion of 'respect' for IHL, it builds on the existing literature studying the meaning of 'ensure respect' and outlines an understanding of the concept in situations such as enacting implementing legislation, diplomatic interactions, regulating private actors, targeting, detaining persons under IHL in non-international armed conflict, protecting civilians (including internally displaced populations) and prosecuting war crimes. It also considers topical issues such as counter-terrorism and foreign fighting.

The book will be a valuable resource for practitioners, academics and researchers. It provides much needed practical reflection for States as to what ensuring respect entails, so that governments are able to address these obligations.

1 Common Article 1: an introduction

Eve Massingham and Annabel McConnachie

On 24 October 2019, before the UNSC, the United States (US) Mission’s Senior Policy Advisor stated:

We remain deeply troubled by reports that Turkish supported Opposition forces [in northern Syria] deliberately targeted civilians. If verified, these actions may constitute war crimes, and we urge our Turkish partners to immediately investigate these incidents and hold accountable any individuals or entities involved. Turkey is responsible for ensuring its forces and any Turkish-supported entities act in accordance with the law of armed conflict (emphasis added) (Barkin, 2019).

This statement is about encouraging another State, and non-State actors, to comply with the laws of armed conflict. The subject matter of this book is an examination of a provision of international law which obliges all States Party to the GCs to ensure that parties to an armed conflict respect IHL.

The law of armed conflict, also known as IHL, protects those not, or who are no longer, taking part in hostilities. It also limits the means and methods of warfare. The core elements of IHL, the GCs and the APs, are discussed in more detail by Crowe in Chapter 2. The GCs and APs, in conjunction with customary IHL, establish a rule, applicable in both international and non-international armed conflict whereby IHL must be respected. In addition, States must ‘ensure respect’ for IHL (CA1; CIHL Study Rule 139; Nicaragua, para. 220). Specifically, CA1 provides that ‘[t]he High Contracting Parties undertake to respect and to ensure respect for the […] Convention [and Protocol] in all circumstances’.

As will be seen in the discussion of the drafting history below, the meaning of CA1 was not well articulated at its inception and has not been fully settled. Debate has long existed as to whether the intention behind CA1 was to restate existing principles of international law or create specific new obligations (Meron, 1987, p. 348; Sassòli, 2002, p. 421). CA1 has been described as a ‘soap bubble’ doing nothing other than reminding States of their obligation to respect the GCs and which might include, ‘an unspecified recommendatory meaning … to induce other contracting states to comply’ (Focarelli, 2010, p. 125). It has also been labelled an ‘innocuous sort of opening phrase’ and, as such, not capable of imposing an international legal obligation upon the High Contracting Parties (HCPs) to ensure compliance with the law (Kalshoven, 1999, p. 60). However, CA1 has also been called a ‘ripening fruit’ that emerged from a ‘tiny seed’ (Kalshoven, 1999, p. 3) and ‘the nucleus for a system of collective responsibility’ having quasi-constitutional status (Boisson de Chazournes and Condorelli, 2000, p. 68).

There is no dispute that all States are obligated, by virtue of CA1, to guarantee respect for the GCs within their own jurisdiction, referred to by Geiss as the ‘internal-compliance dimension’ of CA1 (2015, p. 420). That this includes ensuring respect for this law ‘by persons under its authority and within its jurisdiction’ is not disputed (Boutruche and Sassòli, 2016, p. 6). States discharge this obligation by complying with the duties to implement and adhere to the rules in good faith (APs Commentary, p. 34; Dörmann and Serralvo, 2014, p. 709). As the obligation is one that applies ‘in all circumstances’ it includes actions taken during times of peace, as well as in times of war. As Massingham has noted elsewhere, many of the actions required by States to respect IHL are set out in the text of the GCs and APs (2018, p. 208).

However, what is less clear is what CA1 means by ‘ensure respect … in all circumstances’. Specifically, whether it means that third States have obligations in relation to IHL violations and if so, what might those obligations look like. As is discussed in more detail below (and further in Massingham, 2018), the extent of the legal obligation CA1 encompasses has been established through subsequent practice by States and international organisations (Boutruche and Sassòli, 2016, p. 3) and ‘is today unanimously understood as referring to violations by other States’ (Sassòli, 2002, p. 421). It is indeed a ‘nucleus for a system of collective responsibility’ (Boisson de Chazournes and Condorelli, 2000, p. 68) as it falls to all States party to the Conventions to remain vigilant and address violations as they occur, and it extends to the contents of the GCs in their entirety (Geiss, 2015b, p.118). It is clear that CA1 does not authorise the application of military force against another State (Kessler, 2001, p. 500). However, the third State component of CA1 provides an extensive ‘general external-compliance dimension’ (Geiss, 2015, p. 421) creating a legal obligation for all States, ‘in all circumstances’ to make sure potential violators of IHL – whether State or non-State – comply with the rules of IHL (Boutruche and Sassòli, 2016, p. 3).

The ICRC’s 2016 publication of its updated Commentary to GCI reignited interest in the meaning of CA1 and reaffirmed support for the view that ‘it 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’ (Dörmann and Serralvo, 2014, p. 723). Concern has been expressed at the extent of the ICRC’s contribution to the discourse and some are wary of the move towards an expansive view of CA1 (Egan, 2016; see also, Aly, 2019). However, even where reservations are noted, there is an indication of a ‘willingness to consider an interpretation of Common Article 1 of the Geneva Conventions that entails positive obligations to ensure respect of the law of armed conflict by partner states and non-state actors’ (Hathaway and Manfredi, 2016). Overall therefore, there has been a ‘firm consensus on a modern interpretation that involves third State interest and action in the application of the GCs by parties involved in an armed conflict’ (Breslin, 2017, p. 13). This is now widely recognised and considered the dominant view (Geiss, 2015, p. 419), even if the full scope of it is not completely agreed. As such, today, ‘the question … is not so much whether [CA1] imposes a binding obligation, but rather what type of obligation lies beneath it’ (emphasis added) (Dörmann and Serralvo, 2014, p. 723). What these obligations might look like in practice and their scope is the focus of this book. However, before delving into the specifics of different thematic areas, this chapter recalls the key legal components of treaty interpretation.

The Vienna Convention on the Law of Treaties (VCLT) provides principles for treaty interpretation which can aid understanding of a phrase or article. It is possible to discern meaning firstly, from the subsequent practice of the application of CA1 (VCLT Art. 31(3)(b)); secondly, by considering other relevant rules of international law applicable in the relations between States (VCLT Art. 31(3)(c)) and finally, by taking into account the drafting history of CA1 (VCLT Arts. 31 (4) and 32). These interpretative tools reinforce the view that CA1 is not redundant but rather imposes a specific legal obligation on third States, vis-à-vis States and more broadly to other actors involved in armed conflict, to help them to ensure respect for IHL (Sassòli, 2002, p. 421: Kessler, 2001, p. 505).

Subsequent practice in the application of CA1

There is 50 years’ worth of State practice clarifying the meaning of ensure respect, expressing both a collective and individual responsibility to encourage compliance by State and non-State groups and an expansive responsibility to State and non-State actors. In 1968, Resolution XXIII of the Teheran Conference on Human Rights, noted the external-compliance meaning attributable to ensure respect within CA1. The resolution was adopted with no opposing votes from the 84 member States present (representing two-thirds of the membership of the UN in 1968). It noted that States ‘sometimes fail to appreciate their responsibility to take steps to ensure the respect of these humanitarian rules in all circumstances by other States, even if they are not themselves directly involved in an armed conflict’ (emphasis added). Further, the UNSC and UNGA have called on third States to respond to identified violations of IHL in very specific circumstances. For example, between 1990 and 2004, the HCPs were called upon to ensure respect by Israel, the occupying power, for its obligations under CA1; with the very clear instruction for all third States ‘to continue to exert all efforts to ensure respect for [GCIV] provisions’ by Israel (emphasis added). The 2004 resolution referred to the ICJ Wall advisory opinion to underscore the obligations that third States hold to ensure other States respect IHL (UNSC Res. 681 (1990); UNGA Res. 58/97 (2003); UNGA Res. 59/122 (2004)). Boutruche and Sassòli note that the series of resolutions relating to Israel’s conduct in the Palestinian occupied territories between 1997 and 2001 develop the case for a clear understanding of an external-compliance element to CA1. They also conclude that the ‘selective nature of this practice’ does not diminish its capacity to influence the process of interpretive evolution of CA1 (2016, p. 10).

Specific obligations under CA1 for third States not to engage in particular conduct has also been detailed by the ICJ. The Nicaragua judgment held that encouraging violations of IHL constitutes a breach of the CA1 obligation to ensure respect for IHL and that this obligation was customary in nature (para. 220). As identified in UNGA Resolution 59/122 (2004), in the Wall advisory opinion the ICJ held that all States were ‘under an obligation … to ensure compliance by Israel with IHL as embodied in that Convention’ and were not ‘to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory…’ or to ‘render aid or assistance in maintaining the situation created by such construction’ (paras. 158, 159). This finding was made considering both the erga omnes nature of the obligation of Israel to ‘respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law’ (para. 155) and the CA1 obligation (para. 158). Higgins, in her separate opinion, felt that characterisation of CA1 as erga omnes was perhaps less relevant in light of the longstanding view (quoting from Pictet’s 1952 Commentaries) that should a State fail in its IHL obligations, the HCPs ‘may, and should, endeavor to bring it back to an attitude of respect’ and that HCPs ‘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’ (Wall, 2004, p. 217, para. 39).

Several commentators have noted the ICRC’s consistent entreaties to HCPs to ensure respect of the GCs by taking action to stop violations by others (Kessler, 2001, p. 504; Breslin, 2017, p.14) and that these types of statements have been adopted by other international organisations. The failure to object to these reminders to take action has led one commentator to conclude that such acquiescence is indicative of a contribution towards the development of a formal understanding and acceptance of the expansive external-compliance meaning of CA1 (Breslin, 2017, pp. 14–15).

More recently, in response to the humanitarian crisis as a result of the conflict in Syria, the UNSC has issued a number of resolutions enabling States and international organisations to respond to the crisis without the explicit consent of the Syrian State authorities (ie. UNSC Res. 2165 (2014); and UNSC Res. 2449 (2018)). This practice illustrates how ‘ensure respect’ for IHL may manifest. Each member of the UNSC, in authorising the delivery of humanitarian assistance in this context, is simultaneously acting as a HCP of the GCs and responding, under CA1, to ensuring respect for the Conventions by the parties to the conflict. Zimmerman concludes that members of the UNSC are obligated to ensure respect for the GCs when considering resolutions aimed at preventing or halting violations of IHL, and a failure to do so will attract State responsibility (2017, p. 22). The EU also has a similar approach and in 2014, responding to the humanitarian situation in Syria the EU noted, in a statement to the UNGA, that CA1 ‘… 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’ (Dörmann and Serralvo, 2014, p.722 at fn.78).

Considering other relevant rules of international law

Comparison of the ensure respect terminology of CA1 with similar provisions in international human rights law (IHRL) has been suggested to argue in favour of it representing only an internal-compliance dimension (Geiss, 2015, p. 423; Focarelli, 2010, p. 138). However, this may not be the case. Similarly worded provisions to the obligation to ensure respect in CA1, could be considered in light of Article (3)(c) VCLT. For example, Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that States undertake ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’. Initially this provision was considered to limit the ICCPR to the internal affairs of a State. However, a modern interpretation identifies a clear positive duty beyond the incorporation and implementation of the terms of the ICCPR into domestic legislation. This duty includes a State ensuring that private actors are prevented from ‘impeding another individual’s enjoyment of his rights’. States are under a positive obligation to ‘prevent, punish, investigate and redress harm’ should a third actor violate another’s protected rights. Subsequent developments have expanded the jurisdictional element of this treaty.

General Comment 31 clarifies, in a very similar vein to the obligation of ensure respect in CA1, that ‘every State Party has a legal interest in the performance by every other State Party of its obligations’ and that should a third State draw attention to another State’s breach of protected rights in the ICCPR, this should be ‘considered as a reflection of legitimate community interest’ (UNHRC, General Comment 31 (80) para. 2). States are also not bound only to protect their own citizens or those within their own territory. An extraterritorial nature to the ICCPR is recognised where a State party has power or effective control over other individuals, most commonly when acting as an armed force outside the State’s territory (whether as a State arme...