Common Article 1 of the 1949 Geneva Conventions
On March 1, Nicaragua instituted proceedings against Germany before the International Court of Justice (Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory). In its Application, Nicaragua alleges that Germany has contributed to Israel’s violation of the Genocide Convention, breached peremptory norms of general international law by aiding and assisting apartheid and denying the Palestinian people’s right of self-determination, and aided or assisted Israel’s illegal occupation of Palestine and its attack on Gaza. As alleged, Germany did so by providing Israel with political, financial, and military support.
This post addresses the law underlying a fourth allegation leveled by Nicaragua, that Germany “has failed to comply with its obligations under international humanitarian law, derived both from the Geneva Conventions of 1949 and its Protocols of 1977 and from the intransgressible principles of international humanitarian law, by not respecting its obligations to ensure respect for these fundamental norms in all circumstances” (Application, para. 3). In its Application, Nicaragua renewed a charge it made directly to Germany in a February note verbale, that, “with full knowledge of [Israel’s] wrongful acts,” Germany provided “aid and assistance to Israel in particular weapons that would or could be used in the commission of . . . grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes” (Application, para. 31).
On 8 and 9 April, the Court heard argument on a request for provisional measures pending the Court’s determination on the merits (Application, § V). Nicaragua asked the Court, in relevant part, to order Germany to suspend aid to Israel, “in particular its military assistance, export, and authorization of export of military equipment and war weapons,” and ensure that Israel does not use items already delivered for unlawful purposes. Germany responded by asking the Court to reject Nicaragua’s request and dismiss the case. The Court is now deliberating.
It must be cautioned that in this post we only examine the specific legal issue of obligations under the law of armed conflict vis-à-vis the provision of military support (see also Mimran). It is based in part on research conducted for an earlier article published in International Law Studies. We do not address the first three allegations in the current case, the merits of South Africa’s case against Israel before the International Court of Justice (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip) (see, e.g., Shany and Cohen, here and here), or the justification proferred by the Netherlands Court of Appeals for its judgment regarding the provision of F-35 parts to Israel (see, e.g., Cox). Moreover, our analysis is strictly limited to matters of law; we offer no opinion on whether the legal positions with which we disagree have merit as a matter of policy for States providing support to other States involved in armed conflict.
Finally, we note that the applicability of Common Article 1 to non-international armed conflicts is controversial (we believe it does not apply, see here), as is the issue of whether the conflict in Gaza and Israel is international or non-international in character (we believe it is non-international). On both issues, reasonable minds differ. However, we leave these issues aside to focus on the content of the treaty and customary law of armed conflict rules that are implicated by the Nicaragua-Germany case.
Common Article 1 and its Progeny
The relevant provision of the 1949 Geneva Conventions is Common Article 1, which appears in identical text in all four instruments. It states, “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” The provision was not entirely novel, for the two 1929 Geneva Conventions included language requiring parties to “respect” them (Treatment of Prisoners of War, art. 82; Wounded and Sick, art. 25(1)). Text identical to Common Article 1 appears in Articles 1(1) of the 1977 Additional Protocols I and III to the 1949 Geneva Conventions, which apply during international armed conflict. Germany and Nicaragua are parties to AP I but Israel is not. As Israel is not bound by AP I, States party to AP I such as Germany cannot shoulder an obligation to ensure Israel’s respect for that treaty. Moreover, there is no Common Article 1 equivalent in Additional Protocol II to the Conventions, which governs certain non-international armed conflicts for States like Germany bound by the instrument.
As the text makes clear, Common Article 1 applies only to obligations set forth in the Conventions. However, the article is today considered to mirror customary international law that obliges all States to respect and ensure respect for all law of armed conflict customary rules applicable to international armed conflict.
Respect, Ensure Respect, and In All Circumstances
The key to Common Article 1 of the 1949 Geneva Conventions, Article 1(1) of Additional Protocol I, and their customary law counterpart lies in the three terms, “respect,” “ensure respect,” and “in all circumstances.” The first has long been regarded as a treaty-specific corollary to the requirement to honor treaty obligations in “good faith,” classically expressed in the maxim pact sunt servanda (see, e.g., Vienna Convention on the Law of Treaties (VCLT), art. 26). It reiterates the binding nature of the Conventions as a matter of public international law. The obligation is also co-extensive with the law of State responsibility in the sense that acts and omissions attributable to a State must be consistent with applicable obligations under the Conventions, lest they amount to “internationally wrongful acts” (Articles on State Responsibility, ASR). The International Committee of the Red Cross (ICRC) has observed, correctly so, that in this regard, “common Article 1 does not add anything new to what is already provided for by general international law” (2020 ICRC, Commentary to GC III, para. 177).
Unlike “respect,” the term “ensure respect” did not appear in the 1929 Conventions. The 1949 Conventions’ negotiating history indicates that, by adding the clause, States intended to expand the obligation of compliance (p. 53). Thus, in addition to conducting hostilities in accordance with the Conventions, States must take measures to enhance the likelihood of compliance by those under their control, even in peacetime. For example, the recent Danish Military Manual explains that Common Article 1 involves “an obligation to ensure that the conventions are actually observed by one’s own forces” (p. 641). The Manual offers the examples of providing for domestic law enforcement of the Conventions and informing military commanders of their obligations (p. 642).
Common Article 1 concludes by emphasizing that its obligations apply “in all circumstances.” The phrase denotes the obligation of States to respect and ensure respect for the Conventions independently of their casus belli. Thus, Common Article 1 operates regardless of whether a State fights as an aggressor or in self-defense, as understood in the jus ad bellum. In this sense, the article reinforces the equality of belligerents and the independence of the jus in bello from the jus ad bellum.
The phrase “in all circumstances” also frees, to some extent, the application of the Conventions’ rules from a requirement of reciprocity. In other words, a State’s obligation to observe the Conventions generally does not depend on an adversary’s or any other State’s compliance. Though one of us has challenged whether reciprocity has been fully excised from the law of war, there is broad agreement that most of the Conventions’ obligations are not conditioned on reciprocity.
Finally, it might be suggested that the “in all circumstances” language should be read as applying the obligations to all States whenever there is an international armed conflict. However, Common Article 2 and the context of the Conventions make it clear that only select obligations apply when the State concerned is not a party to the conflict in question (e.g., in peacetime).
An External Obligation?
For most of its time in force, Common Article 1 provoked no meaningful controversy. Indeed, more than 50 years into the Conventions’ operation, the late Frits Kalshoven observed that the provision “may look like a perfect example of a truism” (p. 7).
However, in 2016, the ICRC released an updated Commentary on the 1949 Geneva Convention I, which regulates treatment of the wounded and sick on land. Most of it (as well as subsequent Commentaries on GC II and III) plowed familiar ground, especially with regard to ensuring respect by the State’s armed forces and other persons or groups whose actions are attributable to it, as well as the population over which the State exercises authority. This characterization of the rule was undisputed.
The 2016 Commentary also addressed the obligations to ensure respect by others. In particular, the Commentary explained that parties to the Convention “may neither encourage, nor aid or assist in violations of the Conventions” by others (para. 158). In other words, this is a negative obligation to ensure respect, that is, to refrain from some acts; thus, a State must abstain from providing arms and other support that contribute to violations of the Conventions. Support for the view is found in the International Court of Justice’s Wall advisory opinion (paras. 158-159; see our analysis here, p. 695) and the work of some experts in the field (see, e.g., Sassòli).
We believe the correct interpretation of Common Article 1 is that it was intended only to impose obligations on States vis-à-vis conduct attributable to them under the law of State responsibility or that of those over whom they can exercise control. As a strict matter of treaty interpretation, it imposes no external obligation. Distinguished members of the law of armed conflict community agree. For instance, Professor Sir Adam Roberts observed in 1995 that there “appears to be little or nothing in the records of the 1949 Diplomatic Conference to suggest an awareness on the part of government delegates, or indeed ICRC participants, that the phrase ‘to ensure respect’ implied anything beyond internal observance” (p. 30). And Professor Kalshoven concluded in 1999 that,
The point remains that the primary legal obligation arising from common Article 1 is for States Parties to impose respect for the applicable rules of international humanitarian law, ‘in all circumstances’, on their armed forces, including armed groups under their control, and on their populations: for the implementation of this obligation they can be held legally responsible. No such legal liability attaches to their moral duty to endeavour to ensure respect by their peers. Since it is their right to do this under the law of treaties, they cannot be reproached for doing so either (p. 60).
Nearly two decades later, Professor Robin Geiss likewise concluded, accurately in our view, that “the drafting history of the Additional Protocols, in and of itself, is rather inconclusive on the matter, and if viewed in combination with the travaux préparatoires of the 1949 Conventions, would rather seem to militate against acceptance of an external compliance dimension of the obligation to ensure respect” (p. 121).
To be fair, we do not find the consequences of the ICRC’s interpretation unreasonable (see, e.g., ICRC, Customary IHL study, Rule 144). On the contrary, it would appear well-settled that, irrespective of the proper scope of Common Article 1, customary international law generally prohibits States from encouraging violations of treaties to which they are party or providing military equipment and ammunition knowing that it will be used to violate the law of armed conflict.
Thus, although not basing its conclusion on Common Article 1, the International Court of Justice concluded in its Paramilitary Activities (Nicaragua) judgment that 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 Article 3 common to the four 1949 Geneva Conventions” (para. 46). Indeed, as noted above, parties to a treaty are required to act in “good faith” (VCLT, art. 26). This duty encompasses the doctrine of “abuse of rights,” by which parties “shall abstain from acts calculated to frustrate the object and purpose and thus impede the proper execution of the treaty” (Villiger, p. 367, emphasis added). And it is equally clear that a State that aids or assists another State in violating international law is responsible for doing so if it knew of the attendant circumstances and the aid or assistance was “given with a view to facilitating the commission of that act [and it did so]” (Articles on State Responsibility, art. 16; ILC Commentary at 66, emphasis added).
Rather than Common Article 1, these are the two bases the International Court of Justice should apply in considering whether Germany bears an external negative obligation concerning its support to Israel. It would seem evident that Germany did not cross the thresholds of these two obligations, although that would be a matter for the Court to determine based on the facts presented.
An External Positive Obligation?
The ICRC Commentary also offers an interpretation of Common Article 1 according to which all parties bear a positive obligation to ensure respect by others. Although enjoying some academic and State support (see, e.g., Zwanenburg), in our estimation, the ICRC assertion reflects a legally unsupportable evolution of the rule. That said, nothing bars a State from taking measures to encourage respect as a matter of policy.
According to the 2016 Commentary, States that are party to the Geneva Conventions are legally obliged by Common Article 1 to “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.” It suggests that the obligation “is not limited to stopping ongoing violations but includes an obligation to prevent violations when there is a foreseeable risk that they will be committed and to prevent further violations in case they have already occurred” (para. 164). This argument underpins, in part, Nicaragua’s claims about Germany’s support to Israel. By it, Germany must refrain from providing support to Israel as a means of influencing Israel to end its alleged violations of the law of armed conflict.
This is a misinterpretation of Common Article 1 for a variety of reasons. It is contrary to States’ and commentators’ understandings of the original meaning of the article, inconsistent with current commentary, insufficiently supported as a matter of treaty interpretation, and inconsistent with extensive negative practice by States.
First, there is no evidence of any widely accepted understanding that the ordinary meaning of Common Article 1 required States to ensure respect externally. On the contrary, States, including France, Norway, and the United States, objected to such an interpretation of the article at the diplomatic conference that drafted and adopted the Conventions (p. 53). As Judge Kooijmans noted in his separate opinion in the Wall case mentioned above, “The Court does not say on what ground it concludes that [Article 1] imposes obligations on third States not party to a conflict. The travaux préparatoires do not support that conclusion” (para. 47; see also separate opinion of Judge Higgins, para. 39). Since 2016, numerous States have either expressly or implicitly rejected Common Article 1’s supposed external duty (see Robson, text supported by notes 42-45).
Second, between 1952 and 1960, the ICRC published Commentaries on each of the four Conventions under the general editorship of Dr. Jean Pictet. Further confirming the original understanding of Common Article 1, the 1952 commentary confirms that the term “ensure respect” was intended to strengthen States’ responsibilities. Yet this is so only with reference to internal efforts, including supervision and advance preparation for compliance. The subsequent commentaries followed suit.
It is true that the Pictet team surmised that in a case of breach by another party, a State “may, and should, endeavor to bring it back to an attitude of respect for the Convention” (p. 26, emphasis added). This clarifies that such efforts to ensure respect for the Conventions undertaken against other States are not prohibited interventions in the external affairs of those States. However, the overwhelmingly and repeatedly hortatory character of this passage provides no support for an external obligation.
Third, as noted above, the ICRC’s 2016 and 2017 Commentaries on Geneva Conventions I and II asserted categorically that Common Article 1 includes an external obligation. Yet, its 2020 Commentary on the Geneva Convention III (Prisoners of War) conceded, “There is disagreement as to the legal nature of the positive component of the duty to ensure respect by others because the content of the obligation is not clearly defined and its concretization to a large extent left to the High Contracting Parties” (para. 202).
Fourth, although evolution in the meaning of treaty provisions can occur, the ICRC’s interpretation fails to satisfy the applicable standards. The Vienna Convention on the Law of Treaties’ non-retroactivity provision technically prevents it from regulating the Geneva Conventions as a matter of treaty law (art. 4). But it is not uncommon to apply its rules to the Conventions as a matter of customary law (p. 17, conclusion 2(2)). In this regard, the Vienna Convention accepts that, taken together with a treaty’s context, “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” informs the meaning of a treaty (art. 31(3)(b)).
“Context” as applied to the Conventions includes their general structure and content. Both provide helpful indications of the extent of external obligations owed by States. Most obligations of the Conventions apply only to a State’s own conduct during armed conflict. When the Conventions regulate conduct that is either not attributable to a party to a conflict or involves conduct by non-party States vis-à-vis other States’ conduct, they tend to do so expressly. For instance, States must monitor internment and treatment conditions by States to whom they have transferred prisoners of war (Geneva Convention III, art. 12). Additionally, the Conventions’ grave breaches regime expressly requires States to search for and bring to justice persons alleged to have committed select breaches of the Conventions, regardless of nationality or State attribution (Geneva Convention III, art. 129). Based on these and other provisions, the Conventions’ context supports an interpretation by which external obligations are exceptional and demonstrates that they appear expressly rather than impliedly. Had States intended to adopt another external obligation through the Conventions, they would almost certainly have done so explicitly.
As noted, subsequent practice is also relevant to the extent it establishes interpretive agreement of the parties (VCLT, art. 31(3)(b)). In 2018, the International Law Commission, the body that largely drafted the Vienna Convention, observed that “subsequent agreement” refers to agreement “between all the parties to the treaty” (p. 28, comment 5 to conclusion 4). Thus, before subsequent State practice can signal an evolutionary shift in the meaning of “ensure respect” in Common Article 1, that practice must support a conclusion of consent by all 196 parties to the Conventions.
Yet, subsequent State implementation of the article establishes nothing near universal agreement. States have routinely failed to take measures to ensure respect for the Conventions by other States during armed conflict. States regularly fail to take coercive or any other measures, including mere invocation of responsibility and denunciation, concerning other States’ breaches of the Conventions. This subsequent State practice not only confirms the original understanding of Common Article 1 but also precludes the emergence of the interpretation suggested by the ICRC.
By the same logic, it would preclude either a new customary law rule imposing an external positive obligation or the emergence of a new authoritative interpretation to that effect vis-à-vis the existing customary law counterpart of Common Article 1.
Germany’s Response
Germany set forth its position on Common Article 1 during the provisional measures hearing. It began by noting that a third State’s obligation to “ensure respect” only applies if the failure to “respect” is established in the first place. The proceedings have not yet established this. Germany further notes that as a non-party to the conflict, Nicaragua lacks standing to enforce any obligation Germany might have under Common Article 1.
Regarding the substantive law, Germany echoes the point made above that the only external obligation that the Paramilitary Activities judgment identified was a duty not to encourage violations of the law of armed conflict. In that regard, it argues that “[i]t is inconceivable that Germany would encourage Israel to violate international humanitarian law, and indeed, not even Nicaragua alleges this” (para. 23). Germany concedes that “the obligation to ensure respect generates so-called positive obligations to exert one’s influence on parties to an armed conflict to observe international humanitarian law” (para. 24). Nevertheless, it says it has done so, for instance by repeatedly urging Israel to apply restraint in its operations and to facilitate humanitarian assistance.
Finally, Germany takes on the crux of the matter, the export of arms and other equipment to Israel. It observes that “While the scope of common Article 1 is contested and requires further discussion, even taken at its broadest plausible interpretation, the obligation to ensure respect embodied in common Article 1 can do no more than suggest that all States must conduct a proper risk assessment for decisions regarding exports of military equipment and arms” (para 27). It concludes that its domestic procedures easily satisfy the obligation to ensure respect.
Although correct in conceding the unsettled scope of Common Article 1 obligations, we regard Germany as mistaken in accepting the premise that Common Article 1 imposed any such obligation. Doing so thrust the issue into the realm of facts. It would have been on firmer ground to assert there is no such Common Article 1 obligation in the first place.
Concluding Thoughts
Few, if any, international legal instruments rival the reach and legitimacy of the 1949 Geneva Conventions. Their universal ratification or accession by States, and the widespread recognition that they largely reflect customary international law, afford them exceptionally authoritative impact on the conduct of States during armed conflict – whether wealthy or poor, developed or developing, peaceful or bellicose, theocratic or secular, and democratic or authoritarian. Indeed, legal reform channeled through the Conventions reaches every State and leverages a legal architecture founded on over 150 years of iterative and conflict-tested regulation of war.
It is unsurprising, then, that efforts to amend States’ obligations during armed conflict have seized on the Geneva Conventions. Reinterpreting the Conventions as distinguished from the onerous process of formal amendment by States, is therefore an attractive path to what some deem urgent humanitarian reform.
Yet, along with offering extraordinary potential to influence conduct in war, the Conventions demand, in comparable measure, rigorous and faithful interpretation. Their status as universally accepted international law is attributable not only to their appeal to humanitarian instincts and interests. They are equally accepted and revered for the careful and hard-won bargains struck at their drafting and confirmed in their subsequent practice, including those reflected in Common Article 1 and highlighted by this post.
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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.
Sean Watts is a Professor in the Department of Law at the United States Military Academy, Co-Director of the Lieber Institute for Law and Land Warfare at West Point, and Co-Editor-in-Chief of Articles of War.
Photo credit: IDF Spokesperson’s Unit
