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TUOMAS HEIKKINEN – MARTIN FAIX CYIL 8 ȍ2017Ȏ but also ensure that other States, i.e. including those participating in the military mission, respect IHL. 7 While academia seemingly leans towards the extensive interpretation, 8 certain weak points of such an approach can be identified. 2.1 Drafting of Common Article 1 An argument could be put forward that the drafting history of Common Article 1 does not support the extensive interpretation and that the provision was to be understood as referring to only internal actors under the States’ jurisdiction. 9 Indeed, the beginning of the extensive interpretation is the ICRC commentaries on the Geneva Conventions. 10 The shift started from the original ICRC commentary of 1952 by stating that in cases where a state party fails to uphold the IHL obligations under the Geneva Conventions then “ the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention. ” 11 However, the Commentary did not base such an assessment on the drafting history or the intentions of the High Contracting Parties. 12 Despite this fact, the Commentary on the Additional Protocol I upheld the extensive interpretations of Common Article 1 and specifically mentioned that “ the Diplomatic Conference fully understood and wished to impose this duty on each Party to the Conventions ”. 13 Such a claim attracted criticism for the real lack of evidence to prove that drafters truly held such a belief and understanding of Common Article 1. 14 The discussion on the extensive interpretation of Common Article 1 was very limited during the drafting phase. 15 However, a statement from Italy during the drafting of the 1949 Geneva Conventions might be noted, according to which Common Article 1 is either unnecessary or introducing “ a new concept into international law. ” 16 Since Common Article 1 was adopted as it is, one could argue that it has to be understood as offering such a new concept to international law, for otherwise it would have been deleted as a redundant clause. 17 Similarly, it can be argued that the restrictive interpretation would already be covered by the Ibidem. 8 DÖRMANN, Knut, SERRALVO, Jose, Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations. International Review of the Red Cross , 2014, Vol. 96, No. 895-896, pp. 712-714; GEISS, Robin. Common Article 1 of the Geneva Conventions: Scope and Content of the Obligation to Ensure Respect – ‘Narrow but Deep’ or ‘Wide and Shallow’? In: KRIEGER, Heike (ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region. Cambridge University Press, 2015, p. 427. 9 KALSHOVEN, Frits, The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit. Yearbook of International Humanitarian Law , 1999, Vol. 2, p. 14. 10 Ibidem , p. 54. 11 PICTET, Jean, Commentary I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva: International Committee of the Red Cross, 1952, p. 26. 12 FOCARELLI. op. cit., p. 133. 13 PILLOUD, Claude et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 International Committee of Red Cross, 1987, p. 36. 14 BOUTRUCHE, Theo, SASSÓLI, Marco, Expert Opinion on Third States’ Obligations vis-à-vis IHL Violations under International Law, with a special focus on Common Article 1 to the 1949 Geneva Conventions [online]. Nrc.no 20 Jan 2017 [cit. 13 April 2017]. Available at: https://www.nrc.no/resources/legal-opinions/third-states- obligations-vis-a-vis-ihl-violations-under-international-law/ pp. 12-13. 15 Ibidem. 16 DÖRMANN, SERRALVO. op. cit., p. 714. 17 Ibid. 7

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