CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ STATES’ OBLIGATIONS UNDER COMMON ARTICLE 1 OF THE GENEVA CONVENTIONS … An extensive interpretation of Common Article 1 has been recognized also in the jurisprudence of the ICJ, even if only gradually. In the Nicaragua Case, the ICJ held that despite that the United States was not a party to the armed conflict, the obligation to ensure respect of IHL by everyone in the armed conflict, namely the Contras it was supporting in Nicaragua, was still applicable to the United States. 40 According to the Court, the obligation consists mostly of negative obligations not to encourage or assist the Contras in violations of IHL as the United States had distributed a manual on psychological warfare including advice and encouragement for conduct that would breach the IHL norms to the Contras. 41 However, the ICJ departed from such an understanding in its Wall Advisory opinion 42 by stating that “ every State party to that convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with. ” 43 Unfortunately, the ICJ did not specify measures that States are obliged to take to ensure compliance. The last, and undoubtedly the most crucial point for subsequent practice, is the practice of States regarding the interpretation of Common Article 1. Supporters of the extensive interpretation argue that the fact that the international organizations and especially ICRC have been using Common Article 1 as the basis for States’ obligations to ensure respect of IHL of other High Contracting Parties and the fact that such ICRC and international organizations’ statements have gained little to no critique from States show the States’ acceptance of such an extensive interpretation. 44 However, the practice suggests that, despite declarations, the States have in the end not fulfilled their obligations to ensure respect for third States in a majority of situations. 45 Since IHL violations continue to occur without a majority of States’ interference or reaction, it appears problematic to claim the existence of a troop contributing state’s obligation to exercise influence on other States participating in the MMO in order to ensure their respect for IHL. 46 Despite this fact, examples of such measures, especially in reaction to violations of IHL, can be tracked. 47 Such selectivity of Humanitarian. Official Journal of European Union, 15 th December 2009, C 303/06. Statements like “European Union’s commitment to promote such compliance in a visible and consistent manner” and “There is therefore a political, as well as a humanitarian interest, in improving compliance with IHL throughout the world” hardly suggest that EU is imposing legal obligation for the member states to ensure respect of IHL. 40 International Court of Justice: Judgment of 27 June 1986, Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits). para. 220. 41 ZYCH. op. cit., p. 266. 42 International Court of Justice: Judgment of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion). para. 158. 43 Ibidem. Separate opinions of Judges Kooijmans and Higgins may prima facie challenge such extensive interpretation, but these separate opinions merely questioned the bases for the courts interpretations of the law, and did not deny the possibility of extensive interpretation or the extent of practice pointing to that outcome (BOUTRUCHE, SASSÓLI. op. cit., pp. 10-11). 44 KESSLER, Birgit, The Duty to ‘Ensure Respect’ Under Common Article 1 of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts. German Yearbook of International Law , 2001, Vol. 44, p. 504, FOCARELLI. op. cit., p. 128. 45 KALSHOVEN. op. cit., p. 58-59. 46 Selectivity of State practice raises here similar questions as in the context of Article 89 of Additional Protocol I, which has more clearly developed the obligation for states to “ jointly or individually, in co-operation with the United Nations and in Conformity with the United Nations Charter ” to act in cases where there are serious violations of the Geneva Conventions. 47 Such measures included e.g. diplomatic protests, as listed in HENCKAERTS, Jean-Marie, DOSWALD-BECK, Louise, Customary International Humanitarian Law Volume 1: Rules. International Committee of the Red Cross

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