CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ STATES’ OBLIGATIONS UNDER COMMON ARTICLE 1 OF THE GENEVA CONVENTIONS … i.e. the obligation to ensure respect for IHL of other States participating in the MMO. 55 Also statements of several international organizations support the claim that Common Article 1 is a binding obligation, not a merely discretionary right. 56 Another aspect to be clarified is the typology of measures falling under the obligation laid down by Common Article 1. It could be argued that obligated measures are limited only to negative obligations not to cooperate and assist with IHL violations of other TCSs. However, another possible understanding of Common Article 1 is that it brings forward also an obligation to take positive measures to try to influence transgressors’ conduct. While the first approach has found some support in academia, 57 it is the second approach that should be deemed the correct one. The first approach has been argued to be supported by the ICJ in the Nicaragua case, 58 which condemned US actions only when the US were actively assisting Nicaragua’s Contras in violating IHL, but did not condemn the lack of positive measures taken by the US to ensure that the Contras would respect IHL. 59 Similar arguments have been claimed with regard to ICJ’s statement in the Wall Advisory Opinion. 60 While the Court states 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 ”, 61 it continues to list measures to be taken as an obligation, such as not recognizing the illegal situation and not rendering aid and assistance to Israel for building the wall. 62 Yet the same paragraph re-states that States are under the obligation to ensure respect of Geneva Convention IV in addition to the negative obligations of not to aid and assist or recognize an illegal situation. 63 That speaks for broader understanding of Common Article 1 obligations, going beyond the mere negative obligations listed above. Furthermore, since Common Article 1 obligates High Contracting Parties to take positive measures to ensure respect of individuals within their jurisdiction of IHL, 64 there is no logical reason why the same would not be true for the obligations to ensure respect of other (troop contributing) States. While the approach of treating Common Article 1 as a right to intervene or bringing only negative obligations would be attractive to explain the sporadic State practice for taking measures to ensure respect of transgressors, there are fundamental problems with such claims. For explaining the State practice, one would be advised to look for an obligation that binds the States when they have legitimate chances of success. Such an assumption arises from the 55 BOUTRUCHE, SASSÓLI. op. cit . , p. 12. 56 GEISS. op. cit., p. 425; This argument could be seen as problematic as the statements of international organizations are not binding and could be therefore considered rather as requests or pleads for ensuring respect of others (FOCARELLI. op. cit., p. 157). 57 IMSEIS, Ardi, Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion. The American Journal of International Law , 2005, Vol. 99, p. 115, KALSHOVEN. op. cit., p. 56. 58 ICJ, 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. 59 ZYCH. op. cit., p. 265. 60 Ibidem p. 266. 61 International Court of Justice: Judgment of 9 July 2004, Legal Consequences of the Construction of a Wall…, para. 158. 62 Ibidem , para. 159. 63 Ibidem . 64 SASSOLI, Marco, State Responsibility for Violations of International Humanitarian Law. International Review of the Red Cross , 2002, Vol. 84, No. 846, p. 412.

329