DRAFT TEXT. This comment asserts that Article 1 ‘reiterate[s] the general principle that the Conventions are binding upon its Parties, which have “to respect” them’. ¶ 151. The comment thus offers a further principle, in this case a ‘general principle’, of respect for the law. The comment does not explain the significance of designating a general principle, as contrasted with earlier-identified ‘fundamental’ or ‘basic’ principles. It is possible that a general principle indicates broader application or even a sort of universal utility not found in fundamental or basic principles. It would not be unreasonable to regard respect for law as a general principle of international law or for that matter as a general principle of law as that term is understood by the 1954 Statute of the International Court of Justice, Article 38(c) when it refers to ‘general principles of law recognized by civilized nations’. The latter principles are entirely distinct from principles of international law. They are most commonly derived from municipal legal systems, particularly from notions of procedure applicable to litigation or adjudication. However, it is possible the comment’s characterization of Article 1 of the Convention as involving a general principles was unnecessary. A clearer comment might simply have noted consistency of Article 1 with the 1969 Vienna Convention on Treaties, Article 26, pact sunt servanda, and its likely customary incarnation which dictate, ‘Every treat in force is binding upon the parties to it and must be performed in good faith.’
The comment interprets the High Contracting Parties to the Convention’s obligations under common Article 1 ‘to respect and to ensure respect’ to include themselves and their own organs with respect to the former and ‘by other High Contracting Parties and non-State parties to an armed conflict’ with respect to the latter. ¶ 152 That is, the comment detects from Article 1 both an obligation for a State to ‘respect’ the Convention itself and an obligation for a State to ‘ensure respect’ for the Convention by other States. To reinforce this interpretation, the comment observes, ‘The interests protected by the Conventions are of such fundamental importance to the human person that every High Contracting Party has a legal interest in their observance, wherever a conflict may take place and whoever its victims may be.’ ¶ 152 While many obligations of the Convention are of fundamental importance, this is surely not true of every provision of the Convention. For instance, it is difficult to conceive making tobacco available in canteens as fundamental. Still, the comment concludes that ‘The Conventions thus create obligations erga omnes partes, i.e. towards all of the other High Contracting Parties.’ ¶ 152. The ICRC seems in this comment to indirectly assert that its own evaluation of the Conventions’ importance or fundamentality elevates them to an erga omnes status. The footnote supporting the assertion actually cites an ICJ advisory opinion on the Genocide Convention rather than any source dealing directly with the Third Convention. ¶ 152, n. 2.
The comment adds,
[T]he proper functioning of the system of protection provided by the Conventions demands that States Parties not only apply the provisions themselves, but also do everything reasonably in their power to ensure that the provisions are respected universally . . . . The Conventions thus create obligations erga omnes partes, i.e. obligations towards all of the other High Contracting Parties. ¶ 152.
This passage warrants careful examination. It seems, at first blush, in tension with the specifically delineated and quite selective obligations of the grave breach provisions of Articles 129 and 130 of the Convention. These articles’ grave breach regime explicitly describes universal enforcement obligations for all States with respect to clearly enumerated, but only select, provisions of the Convention. The comment seems to extend this notion to common Article 1 without the benefit of treaty language comparable to the grave breach articles. It is possible that the comment detects distinct responsibility and enforcement functions from Article 1 and the grave breaches provisions of the Convention. That is, may be possible to read Articles 129 and 130 to refer a regime of enforcement against individuals whereas Article 1 refers to States’ breaches. Yet it is not clear that any State has proffered or implemented such an understanding. The comment does not cite any such State regime or instances of practice in this respect. Moreover, within the same instrument, surely some account must be made of the difference in drafting and construction between Article 1 and the grave breaches articles.
A further possibility may be that the comment regards the Convention’s later grave breach provisions, particularly Article 130, as erga omnes rules that require an injured State (read: all States) to take action to prosecute or extradite, whereas all other rules of the Convention are erga omnes but do not require the specific acts of prosecution or extradition. Still, this is not the view offered by the Updated Commentary. The comment’s interpretation obliges positive external obligations with respect to the Convention’s supposed erga omnes rules. Additionally, an erga omnes character does not carry an obligation to enforce. It merely entails a right to do so; erga omnes character justifies universal enforcement but does not oblige it. The Updated Commentary acknowledges the distinction later in its comment on Article 129. It observes, ‘Furthermore, the grave breaches regime imposes on States Parties the obligation to either prosecute or extradite alleged offenders, regardless of their nationality, as opposed to a right to do so recognized in international law in connection with alleged perpetrators of war crimes.’ ¶ 5087.
To its credit, the comment acknowledges a narrower reading of common Article 1 but insists nonetheless, ‘[T]he prevailing view today and supported by the ICRC, is that Article 1 requires in addition that States ensure respect for the Conventions by other States and non-State Parties. This view was already expressed in the 1960 ICRC Commentary.’ ¶ 153. It is true that the Pictet 1960 Commentary expressed support for a broad reading of common Article 1. Yet a few clarifications are in order. First, the 1960 Commentary was not an ICRC institutional commentary but rather the private work of its editors. Second, Pictet mentioned an external component but with the qualifier ‘should’ in each case. The more clearly emphasized meaning from Pictet is his rejection of reciprocal observance as a condition of application between Parties and a requirement that breaches be prevented ex ante, thus accounting for the ‘ensure respect’ language. Third, and as perhaps further evidence of the still modest nature of common Article 1 as originally adopted, the original Commentary is quite brief, running to about one printed page. It identifies nothing comparable to the elaborate system of enforcement and responsibility between States envisioned by the Updated Commentary. And last, while citations to the preceding, original Commentary are helpful for awareness purposes, particularly for busy practitioners, the question of bootstrapping arguments developed by an earlier edition warrants consideration. Rather than the fact of the view having been expressed previously, it seems the extent to which that view has been adopted and incorporated into practice that is relevant to assessing the meaning of common Article 1. Meanwhile, it is unclear in what sense the broad, external view is ‘prevailing’ as the comment asserts. The observation is not supported by sufficient authority or citations to indicate it is a numerically prevailing view held and expressed by States. Nor is there any indication that the prevailing balance of practice by States during armed conflict has been to exercise common Article 1 obligations externally. By its own methodology it would seem the Updated Commentary would turn to the Vienna Convention article 31(3)(b) standard for subsequent practice and agreement, yet again, both evidence of subsequent practice and agreement are lacking in this respect. This leaves the possibility the ICRC considers the external view to be prevailing in academic circles and among select commentators. Yet event this assessment is not overwhelmingly clear from the citations or from a survey of available academic commentary on the subject. The comment does not offer, nor does it seem feasible to compile, an especially reliable accounting in this respect either.
The title of a private work cited by the comment suggests a novelty the Updated Commentary does not readily concede. This lone passage on the issue appears in the private commentary of Bothe et al., New Rules for Victims of Armed Conflict: ‘the obligation to ensure respect for the Protocol falls also upon Parties not involved in the conflict. They have to use any lawful means at their disposal in their international relations to ensure that the HCP involved respect the Protocol.’ ¶ 2.8.
Turning to the history and development of common Article 1 to better understand its meaning, the comment notes the 1929 Geneve Convention’s obligation to ensure respect in all circumstances appeared in Article 25. ¶ 156. It indicates the 1948 draft at the 17th Conference of the Red Cross in Stockholm moved the obligation to Article 1 of that draft. The 1948 Conference also added the element ‘ensure respect’ 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’ but ‘must also do everything in their power to ensure that the humanitarian principles on which the Convention is founded shall be universally applied.’ ¶ 157 (quoting draft Conventions submitted to 1948 Stockholm Conference, p. 5). If so, this does not seem a fully honest interpretation.
As an aside, the comment notes the ICRC Customary International Humanitarian Law study extrapolated the obligation of common Article 1 of the Conventions to the entire body of the law of war. ¶ 159 This conclusion would not be objectionable if limited to the narrower understanding of common Article 1 as a provision intended to restate the obligation to fulfil legal duties (pact sunt servanda) during a State’s own operations and by its own forces. However, if the very broad and obligatory external and erga omnes meaning offered by the ICRC is retained then the conclusion would mean every State has an erga omnes obligation to ensure respect for every provision of the law of war. The humanitarian allure of the view is far more apparent than the legal support for it.
The comment validly notes, ‘Common Article 1 is addressed to the “High Contracting Parties”. Contrary to some other provisions in the Convention, it is not addressed to the “Parties to the conflict”. Hence, it does not cover non-State armed groups which are party to a non-international armed conflict.’ ¶ 164. This is an interesting concession by ICRC. From a humanitarian standpoint and considering the object and purpose the Updated Commentary identified earlier for common Article 3 respecting non-international armed conflicts an interpretation that non-State armed groups held obligations might have been expected. The comment distinguishes obligations applicable to non-international armed conflict, however, observing the obligation to ensure respect does apply to non-State actors with respect to Common Article 3. ¶ 165. Again, the humanitarian motive for the conclusion is clearer than the legal basis. ICRC products and two private academic comments are the cited sources for the conclusion. There is no mention of State practice subsequent to adoption of common Article 1 or evidence of agreement between States to that effect. Moreover, the interpretation rests uneasily with a later conclusion that international organizations bear obligations under common Article 1 notwithstanding they are not High Contracting Parties to the Convention.
The comment emphasizes that arrangements of operational control during multinational operations do not reduce the erga omnes obligation. ¶ 168. However, the contingent contributions of forces to these alliances are usually evidence to the contrary of the International Committee of the Red Cross understanding of Common Article 1. That is, notwithstanding shared operational arrangements, States frequently retain jurisdiction over their armed forces with respect to disciplinary matters such as enforcement of the Convention. A clarification from States in this respect would be useful.
The comment also extends the obligation of common Article 1 to international organizations. ¶ 171 This seems in tension with the comment’s prior observation with respect to non-State parties. See ¶ 164. In that case, the International Committee of the Red Cross emphasized Common Article 1 uses the term ‘High Contracting Parties’ as opposed to ‘Parties to the conflict.’ With respect to international organizations, the latter would seem better suited than the former as international organizations cannot become Contracting Parties to the Convention.
- The obligation to ensure respect by others
Building on its earlier claim that common Article 1 includes an external component, the comment asserts, ‘States, whether neutral, allied or enemy, must do everything reasonably in their power to ensure respect for the Conventions by others that are Party to a conflict.’ ¶ 186 It continues,
This duty to ensure respect by others comprises both a negative and a positive obligation. Under the negative obligation, High Contracting Parties may neither encourage, nor aid or assist in violations of the Conventions by Parties to a conflict. Under the positive obligation, they must do everything reasonably in their power to prevent and bring such violations to an end. This external dimension of the obligation to ensure respect for the Conventions goes beyond the principle of pacta sunt servanda. ¶ 187
The comment does offer a contrasting view. It notes that Professor Frits Kalshoven, a highly influential law-of-war commentator who frequently contributed work to the International Committee of the Red Cross, had offered a far narrower interpretation of common Article 1. ¶ 188, n. 66 (citing Frits Kalshoven, ‘The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit’, Yearbook of International Humanitarian Law, Vol. 2, 1999, pp. 3–61, 28). The comment also notes the U.S. and Norway advocated narrow understandings of common Article 1 at the 1949 Diplomatic Conference. ¶ 188 (citing Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 53 (Norway and United States).
Nonetheless, the comment rebuts these views with the ‘overwhelming humanitarian importance’ of the Conventions and indicates the ICRC had made its broad understanding clear prior to the Diplomatic Conference. ¶ 188. The latter is a curious comment. It has an air of estoppel, seeming to indicate that because the International Committee of the Red Cross placed States on notice that it regarded the proposed language to carry a certain meaning that States adopting that language, even States that adopted that language understanding it to hold a contrary meaning, could not effectively rebut or reject the notified view. At least the U.S. and Norway appear to have expressed a contrary understanding prior to adoption of common Article 1. It seems just as likely that by making their narrow understanding clear during the Diplomatic Conference, and not having provoked significant resistance to their view that estoppel might run against the International Committee of the Red Cross view. Ultimately, it may be best to regard the matter as unresolved by preparatory work.
The comment offers a raft of ‘subsequent practice’ in support of the erga omnes view drawn from conferences and unrelated treaties. ¶ 189. At minimum, these citations are worth careful examination by States.
The comment notes that in addition to a positive obligation of enforcement against all other Parties, common Article 1 involves a negative obligation not to aid or assist violations of the Convention. ¶ 192 This much of the comment tracks the International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, Article 16 which provides,
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.
The comment identifies ‘transferring weapons if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the Conventions’ as violation of Common Article 1 negative obligation. ¶ 194. The observation is likely correct; however, a qualification is required. Under the Articles on State Responsibility aid or assistance is itself a wrongful act. It is not a means for attributing other States’ internationally wrongful acts to the supporting State. And the extent to which common Article 1 fully incorporates the aid or assistance regime of the Articles on State Responsibility is unclear. The Convention significantly predates the International Law Commission’s final draft Articles on State Responsibility. Although that work began soon after adoption of the Convention and codified in many respects existing customary international law on State responsibility.
To return to the comment’s weapon transfer example, whether a State must specifically direct its support or transfers to acts that amount to violations by the receiving State is also unclear. The comment appears to suggest that a mere expectation of prohibited use is sufficient to constitute the knowledge element of prohibited aid or assistance. Yet a commentary to the Articles on State Responsibility explains that prohibited aid or assistance ‘must be given with a view to facilitating the commission of that act, and must actually do so.’ Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, 2001, Article 16, ¶ 3, p. 66. Thus, an account of the weapons transfer scenario involving prohibited aid or assistance would require the transferring State intended to facilitate the receiving State’s breach of the Convention. To the extent the International Committee of the Red Cross comment means to suggest a departure from the general international law regime of State responsibility, strong evidence supporting this claim seems to be required. This is so particularly considering the Updated Commentary’s incorporation of the Articles on State Responsibility with respect to other Articles. See e.g. ¶ 1514 (concerning Article 12 responsibility for treatment of prisoners of war by organs of the State). Practitioners should carefully consult their own State’s legal positions in this respect as well as their State’s views on the Articles on State Responsibility more generally. States should also consider making their views on this issue clear.
In addition to negative obligations to refrain from certain conduct, the comment asserts the external element of common Article 1 includes a positive obligation involving affirmative acts. It asserts,
The High Contracting Parties also have positive obligations under common Article 1, which means they must take proactive steps to bring violations of the Conventions to an end and to bring an erring Party to a conflict back to an attitude of respect for the Conventions, in particular by using their influence on that Party.’ ¶ 197 More significantly perhaps, it alleges, ‘This 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. ¶ 197.
This is a stunning interpretation considering the number of States Parties to the Convention, their various capabilities and means of influence, as well as the preventive dimension of the obligation as couched by the International Committee of the Red Cross. There is not strong evidence the Convention has been enforced as prescribed by the comment. Combined with the quite expansive substantive obligations outlined throughout the Updated Commentary, positive obligations to undertake preventative steps present perhaps as many destabilizing effects as humanitarian advantages.
To support its view with respect to positive obligations, the comment cites State responses to an International Committee of the Red Cross questionnaire circulated in 1973. ¶ 204. A commentator, however, has questioned whether the comment fairly and accurately characterizes State responses to the survey. Verity Robson, ‘Ensuring Respect for the Geneva Conventions: A More common Approach to Article 1’, Opinio Juris, 20 July 2020, http://opiniojuris.org/2020/07/17/ensuring-respect-for-the-geneva-conventions-a-more-common-approach-to-article-1/.
The comment concedes, ‘Certainly, the precise content of this positive obligation is difficult to determine in the abstract, yet this difficulty is not sufficient in itself to deny the existence of such an obligation. Common Article 1 is a living provision which must be interpreted in the overall context of the Conventions.’ ¶ 205. Yet had subsequent practice established an external positive obligation under common Article 1, surely those 70 years would have yielded a wealth of State practice and agreement to support the claim. That the comment offers no citation to a State unilaterally undertaking the sorts of measures envisioned as obligatory weakens its claim. The comment includes a list of individual measures States might undertake. ¶ 214. But again, a much stronger case would have been made by citing actual example of State practice rather than by resort to private scholarship or interpretation.
Finally, there is tension with the suggestion that every State is responsible for ensuring respect for the Convention by every other State when Article 12 of the Convention outlines a clear system of responsibility in this respect between transferring and receiving Powers. The negotiating history considered a broader and joint allocation of responsibility but rejected it in favor of fixing responsibility on a single party. The comment’s novel reading effectively makes every State responsibility for the treatment of every prisoner of war at all time, displacing or rendering as surplus the Convention’s dedicated regime of responsibility in cases of prisoner of war transfer.
- The phrase ‘in all circumstances’
This section of the comment begins with two uncontroversial understandings of the function of common Article 1. First, it indicates,
This phrase was originally linked to the abolishment of the so-called si omnes clause, a provision contained, among others, in the 1906 Geneva Convention and in the 1907 Hague Conventions to the effect that the Conventions were only applicable if all of the belligerents in a given conflict were party to it. ¶ 217.
The 1899 and 1907 Hague Conventions had restricted their operation to wars exclusively involving States Parties to those instruments. Participation of any State not Party to the Hague Conventions extinguished obligations of every Party to the conflict. By contrast, the 1929 Geneva Convention had abandoned the si omnes clause through its Article 82. This is a widely agreed function of Common Article 1 with respect to the 1949 Convention. Second, the comment observes, ‘The undertaking to respect and to ensure respect “in all circumstances” also reaffirms the strict separation of jus ad bellum and jus in bello as one of the basic safeguards for compliance with the Conventions.’ ¶ 219.
The comment discerns a further function for the ‘all circumstances’ passage with respect to reciprocity. It asserts, ‘The words ‘in all circumstances’ moreover support the non-reciprocal nature of the Conventions, which bind each High Contracting Party regardless of whether the other Parties observe their obligations.’ ¶ 221 In addition to this purported purpose of the Article, the comment cites Vienna Convention on the Law of Treaties, Article 60(5) to reject failure of reciprocity as a basis for the Third Convention’s obligations. ¶ 221. Strict application of the Vienna Convention to the Third Convention seems precluded by the former’s non-retroactivity provision. Article 4 of the Vienna Convention limits that instrument’s application to treaties that postdate it. However, it is possible to conceive of the non-reciprocity rule of Article 60(5) as reflecting a retroactive customary rule of interpretation. Still, extensive State practice and comment would be expected to justify such a claim. The comment does not muster such evidence. The comment concedes, however, ‘On the other hand, respect ‘in all circumstances’ does not seem to imply, by itself, an absolute prohibition on reprisals beyond those prohibitions specifically provided for in the Conventions’ ¶ 222
Ultimately the comment to common Article 1 proves one of the more problematic of the Updated Commentary. It suffers from both creative interpretation—seemingly no humanitarian possibility is unvindicated by the reading of the Updated Commentary—and, more significantly, there is a thoroughgoing lack of the subsequent practice and agreement between State that the Updated Commentary indicated it was undertaken to account for.