CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ STATES’ OBLIGATIONS UNDER COMMON ARTICLE 1 OF THE GENEVA CONVENTIONS … However, it has to be reiterated, that if the High Contracting Party has the capacity to influence the transgressor, then it has a duty, not merely a right, to take both positive and negative measures to ensure respect of IHL. 4. Possible measures under Common Article 1 obligation to ensure respect Having defined the nature and scope of obligation to ensure respect under Common Article 1, the last fundamental question needs to be addressed, namely that of possible measures to be taken by (troop contributing) States to ensure respect. In the first step, two preliminary remarks have to be made. First, it has to be reiterated that the content of due diligence obligation in relation to Common Article 1, i.e. identification of the content of “ensure respect” obligation in the particular case, must be determined on a case by case basis 75 as it depends on a variety of factors, as they have been suggested in previous chapters (especially the State’s capacity to influence, feasibility of a measure, but possibly also seriousness of the potential violation). Second, as this article deals with Common Article 1 obligations in the specific context of multinational operations conducted under the auspices of international organisations, the examination has to pay due regard to specificities of such a context. In general, States do have a wide variety of measures at their disposal to ensure respect by third entities. 76 In the context of multinational operations, measures taken within the framework and in relation to the integrated structure of MMOs seem especially promising in the sense of their possible effectiveness (in the sense of probable success of ensuring compliance with IHL). A caveat applies here: Identification of available and reasonable measures depends, of course, on the specificities of the particular MMO, reflecting its structure, intensity and interoperability of the operation. MMOs, such as the ones under NATO leadership, with a unified chain of command, differ greatly from loosely connected MMOs based on an ad hoc agreement. Possible measures, which TCSs can adopt to exercise influence (and thus offering the possibility to fulfil their “ensure respect” obligation, may be of legal or extra-legal character. 77 Within the second category States may adopt a variety of measures, especially exerting political and diplomatic pressure (such as protests or referral to international institutions), or taking coercive measures (retorsions). The TCSs can condition their participation on the acceptance of certain IHL standards. If the MMO issues Rules of Engagement that the TCS would deem allowing conduct illegal under international law, the troop contributing State can refuse its participation in the whole military operation. Such an approach has also been 75 DÖRMANN, SERRALVO. op. cit., p. 725; see also ICJ, Bosnian Genocide Case , para. 430, according to which the due diligence “ calls for an assessment in concreto ”. 76 For a comprehensive examination of this question see: PALWANKAR, Umesh, Measures Available to States for Fulfilling their Obligation to Ensure Respect for International Humanitarian Law. International Review of the Red Cross , Vol. 33, No. 298, 1993, pp. 9-25. 77 There are certain available measures also outside the framework of MMO, such as diplomatic measures (diplomatic pressure, naming and shaming or protests), coercive measures (freezing of assets or terminating diplomatic relations) and finally to cooperative measures done with international organizations (initiating review processes in regional human rights courts and human rights monitoring bodies or measures taken by the UN Security Council), see FOCARELLI. op. cit., pp. 145-146.

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