CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ STATES’ OBLIGATIONS UNDER COMMON ARTICLE 1 OF THE GENEVA CONVENTIONS … in the other entities’ conduct, such understanding was developed by the subsequent practice of States. Consequently, the paper will examine the nature and scope of the obligation to ensure respect, namely whether it has to be understood as a right or rather a duty to interfere and in what circumstances Common Article 1 shall be applicable. It will be argued that Common Article 1 constitutes a positive duty to interfere, but the High Contracting Parties are only obligated to take measures that have legitimate expectations of success and would not obligate measures that are unable to influence other entities. Chapter 4 will attempt to delineate typology and dimensions of measures that TPCs can take to ensure respect, paying particular attention to decision-making procedures (especially voting) as one of the measures through which States participating in military operations under the auspices of international organisations can exercise influence on other participating States and the international organisation itself. Due to the variability of MMOs features, structure, degree of integration, or possibility of Non-Member States participation in the operation, the authors deem it suitable to provide examples and carry out examination of the questions raised above with reference to a specific context, namely that of NATO operations. NATO operations provide a suitable (typical) example of integrated MMOs, i.e. operations under a single chain of command of the international organisation with a formalised decision-making process, which gives extensive possibilities of the troop contributing states to affect the conduct of the operation and thus to ensure respect for IHL, as obliged under Common Article 1. Moreover, NATO continues to be the most active and strongest regional military organization deploying troops in out-of-area operations. 3 The conclusions drawn with reference to NATO can be applied to MMOs conducted under the auspices of other international organisations, however subject to adjustments reflecting specific features of each military operation and/or international organisation’s legal framework. Common Article 1 Common Article 1 states that “ The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances .” 4 This obligation forms a part of customary international law and applies to all States and competent international organisations. 5 However, the questions of the scope and content of this two-sided obligation (especially its “ensure respect” part) has caused controversy since its inclusion into the Geneva Conventions almost seven decades ago. A review of the discussions on this topic reveals two competing approaches, one relying on a restrictive interpretation, the other favouring an extensive interpretation of the provision. The restrictive interpretation claims that Common Article 1 merely obligates (troop contributing) States to ensure that all organs and individuals within their jurisdiction follow IHL. 6 The extensive interpretation, on the other hand, claims that TCS must not only ensure respect of IHL for organs and individuals under their jurisdiction, 2. 3 ZWANENBURG, Marten, Accountability of Peace Support Operations . Martinus Nijhoff Publishers, 2005, p. 26. 4 Ibidem. 5 BOISSON de CHAZOURNES, Laurence, CONDORELLI, Luigi, Common Article 1 of the Geneva Conventions revisited: Protecting collective interests. International Review of the Red Cross , 2000, No. 837, available online at: https://www.icrc.org/eng/resources/documents/article/other/57jqcp.htm. 6 FOCARELLI, Carlo, Common Article 1 of the 1949 Geneva Convention: A Soap Bubble? European Journal of International Law, 2010, Vol. 21, No. 1, p. 127.

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