The “Obligation” of States to Call for the Respect of IHL in Case of Violations
There are two bases in international law under which there is a discussion of an obligation of States to intervene and to call for the respect of international humanitarian law (IHL) rules in face of their violation: under particular international law, in the context of Common Article 1 of the Geneva Conventions of 1949; and under general international law, as a consequence of the jus cogens nature of IHL rules. Let us consider both limbs.
Common Article 1
Common Article 1 of the GCs reads as follows: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” This provision has been interpreted as meaning that States have not only an “internal” (municipal) obligation to ensure respect (e.g. in case of mandates given to private security companies), but also an “external” obligation to ensure such respect, which means that they must intercede when third States violate IHL and/or commit war crimes in order to curb such deviant actions.
The International Committee of the Red Cross (ICRC) holds such a view in its commentaries (see e.g. ICRC, Commentary on the First Geneva Convention, Cambridge, 2016, p. 48ff) and the International Court of Justice has lent its authority to this position (see Palestinian Occupied Territory advisory opinion, para. 279; Wall advisory opinion, para. 159). Other organs have arguably also taken this position (see UN Security Council Resolution 681, para. 5; though Resolution 681 might also be read to have created a freestanding obligation for member States to ensure respect by Israel rather than recognizing one inherent to common Article 1).
On closer inspection, common Article 1 has undergone a remarkable transformation since 1949. This provision had in 1949, above all, the meaning of ensuring application and respect of the GC within the contracting State. In other words, the primary aim was to ensure that treaty obligations were extended to a whole range of bodies, or even entities located on the territory of the Contracting State, and which are not automatically bound by an international convention that they have not themselves ratified (see A. Frutig, p. 52 et seq.).
The obligation to respect the relevant rules of IHL must in fact weigh on all entities over which the Contracting State exercises its authority. The Contracting State is thus obliged to take appropriate measures. Common Article 1 was therefore conceived as a means of compelling Contracting States to respect various obligations: firstly, it is not enough to give a few orders; it is also necessary to monitor how the conventions are implemented by the State authorities. Secondly, it is not enough to wait for the possible time of an armed conflict; implementing measures must already be taken in peacetime. Thirdly, to ensure that potential future rebels have knowledge of IHL, it must be disseminated among the civilian population. Fourthly, it is necessary to ensure that private companies respect the Conventions, for example regarding the protection of emblems and their non-commercial use (for this, internal legislation must be enacted); etc.
The obligation to ensure that the Convention is respected externally (towards other contracting States) already appears in the Pictet Commentaries. However, it is linked to non-mandatory terminology: “other contracting parties may, and should, endeavour …” (italics added; in French the words are “peuvent-elles – et doivent-elles (rather devraient-elles, since the English equivalent is not shall but should) – chercher à …”). The commentators thus seem to base themselves on a moral rather than a legal obligation. Indeed, it is the permissive terms that predominate: “may/peut” (see Pictet, Commentary to Convention I, p. 26). Subsequent practice discussed above came to endorse Pictet’s conception. The internal aspect of common Article 1 quickly faded away to merge with the principle pacta sunt servanda and the application of treaties in good faith.
The external aspect, on the other hand, received significant developments, so much so that common Article 1 was quickly reinterpreted and reformatted. Initially perceived as a provision that was not very innovative, almost banal, devoted to the application of IHL rules in the internal law of the contracting parties (hence also the absence of doctrinal references to this provision in the years following the adoption of the Geneva Conventions; could one have imagined such silence if this provision had had a revolutionary external scope from the time?), it gradually transformed into a key provision of modern IHL, something which was helped by militant doctrine.
As a first step, common Article 1 hardened in the context of non-international armed conflict (NIAC). It was used to demand respect for IHL in these conflicts, where this respect was regrettably least assured (Frutig, p. 107 et seq). The rest is well known: Article 1 was gradually reinvented as a tool to ensure respect for IHL in all circumstances by any contracting party. What is the precise legal nature of this legal position: an obligation or simply a right, or a faculty?
Practice is clear in this regard (A. Frutig). To take literally the obligations-conception, it would mean that in every armed conflict, including NIACs, each contracting party to the GCs must take steps (and moreover probably undertake even “everything in its power”) to put an end to violations of IHL. Every State is a party to the GCs; however, we have never seen, in each armed conflict, 190 or more States or even any significant fraction of them, taking action to put an end to violations of IHL, which inevitably take place in every conflict on a more or less significant scale.
Therefore, if we postulate a duty to act, we will end up in each armed conflict with as many violations of common Article 1 as there has been passivity – i.e., innumerable violations. In such a case, one should at least expect that some remedies of the law of State responsibility are activated to react to the flooding of breaches.
But this is not the case. No “sanctioning” of such passivity, as violations of common Article 1, ever occurred. Can we think that there would have been such a compounded passivity, on the duty to act in the first place and on the sanction of inaction thereafter, if there was truly a legal obligation to act under common Article 1? Should we not think that the general absence of sanction is rather indicative of the fact that States do not feel obliged to act in the first place?
What we find instead in State practice are certain steps, at certain times, by this or that State, especially those who have influence over this or that belligerent. Sometimes there is action on the part of the Conference of Member States, but again very sporadic, selective, and uneven. The detailed analysis of the practice, as undertaken by Frutig, shows that this practice is entirely compatible with the idea of a right or a faculty to intervene, based on common Article 1. But it does not reveal the existence of an obligation applicable in all circumstances. Such an obligation has never been implemented in a sufficiently constant manner since 1945 to form any opinio juris – and since we are in a development of common Article 1 by subsequent practice, we are in the domain of a development of customary law, grafted onto the GCs.
Peremptory Norms
It is often claimed that IHL contains many peremptory norms of international law (jus cogens) (see e.g. Eric. David, p. 94 et seq.). If these norms are peremptory in the sense of Articles 40-41 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), then the consequences ensuing from the breach of such rules would follow. As Article 41 of the ARSIWA holds, such consequences are threefold: an obligation to cooperate to put an end to the breach; a duty not to render aid or assistance to such breach; and a duty not to recognize the consequences of such breach. The latter two duties can be discarded in our context: both are only of a negative nature (not to do something), whereas we are interested here in a positive obligation (the duty to intervene and to ask for respect of IHL).
But the first duty can be taken as encompassing a duty to ask for respect, because that is part and parcel of the duty of cooperation. To be sure, the duty set out in Article 41 has a collective nature: cooperation in international institutions like the UN or other ad hoc fora to the effect of putting an end to the violations. On the contrary, the duty we are considering here is an individual duty, a duty of each State taken uti singulus. However, the latter duty can be implied in the former: if there is a duty to cooperate to put an end to a violation, a fortiori must there be first a duty to act individually, if only to organize such a cooperation. If that is true, and if therefore general international law provides for a duty to intercede, must we not in turn interpret Common Article 1 in the light of general international law and postulate a duty to act also under the GCs?
The difficulty with this entirely possible reading is that the International Law Commission—perhaps only grudgingly—admitted that the obligation under its “cooperation” provision of Article 41 was a progressive development of international law and did not reflect already well-established customary principles (see James Crawford, p. 249, n. 3). It can hardly be said that this provision has been applied since 2001 with the regularity and the requisite opinio juris as to the existence of an obligation, rather than triggering only a right or a faculty. We have seen many jus cogens violations without such collective or concerted action, in recent times, the situation in Gaza and the relative passivity of the world in its regard have shown once more the fragility of the rule.
We are thus led back to what we found under common Article 1: a right can certainly be admitted; an obligation remains somewhat in limbo. It is true that the very concept of a jus cogens violation under ARSIWA and general international law seems inherently to call for an obligation to act, and not merely a possibility to do so. But it is still international practice which shapes the true extent of the obligations States are ready to undertake, and not (axio-) logical deductions from concepts.
Conclusion
In conclusion, it can be said that:
1) as much as it can be desirable, there seems still to be at present no obligation under Common Article 1 or general international law for States to intercede and to demand the end of violations of IHL by other States or armed groups;
2) there is conversely certainly a right or faculty of these third States to demand such a respect of IHL;
3) a demand of this type cannot be configurated as an unlawful intervention in internal affairs, because the undue coercion-element is lacking and no specific rule of international law qualifies such action as prohibited intervention (as e.g. with premature recognition of a State, which is an unlawful intervention even absent coercion according to a separate rule of international law);
4) much is not lost by admitting only a right and not an obligation to act, since States in any case only quite rarely intercede directly to call for respect of IHL; and
5) such intercession should however be politically and morally encouraged, if we consider that IHL is a matter of public concern and that it contains rules of minimum humanity, whose aim is to avoid jumping into barbarism and to usher into hell.
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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC. Prof Kolb is also a member of the legal section of the Swiss military high command (IHL section).
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Marine Corps Cpl. Jordy Morales
