CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ STATES’ OBLIGATIONS UNDER COMMON ARTICLE 1 OF THE GENEVA CONVENTIONS … that human rights legislation cannot bring forward obligations for States to vote a certain way in the UN Security Council. 100 Prima facie such conclusion could be understood as an argument against Common Article 1 to obligate TCS to vote for or veto certain actions in the decision-making process of an international organization. Nevertheless, the Behrami and Saramati Case concerned only applicability of the European Convention of Human Rights, and not the Geneva Conventions. 101 Additionally, that case presented a problem of permanent members of the Security Council having different obligations, as not all of the permanent members are bound by the European Convention of Human Rights. However, that would not be a problem for Common Article 1 since GCs have universal acceptance. 102 Thirdly, the European Court justified its decision by claiming that since the Security Council decisions are “ fundamental to the mission of the UN to secure international peace and security ” and “ they rely for their effectiveness on support from member states ”, they cannot be scrutinized by the Court as otherwise the implementation of those decisions would be endangered. 103 In that sense, the justifications are based on policy and the necessity of Security Council’s actions, instead of general legal principles. Therefore, it does not necessarily mean that NATO would need or deserve similar protection from scrutiny for their decision-making process. Therefore, in cases where the decision-making process is done in a manner where TCS are able to influence the outcomes, especially by a unanimous decision-making process such as in NATO, the MMO as a whole should refuse interpretations of IHL by TCS that go beyond the allowed conduct under IHL, when those interpretations go to an extent that they would allow breaches of IHL. 104 In those cases other TCS must try to prevent, by the powers that are granted to them by unanimous decision-making process or otherwise, those standards from being applied. It would not be enough to allow TCS to decline taking part in the missions, 105 which they deem illegal under international law, but to attempt to enforce their interpretations and standards of law to the whole MMO. If a TCS fails to refuse its acceptance in the unanimous decision-making process, either for targeting decisions or in accepting Rules of Engagement, the State would breach the Common Article 1 obligation to ensure the third States’ respect of the Geneva Conventions. The responsibility of the TCSs would not come over the DARIO rules of attribution, but from their primary obligations arising from Common Article 1. 100 European Court of Human Rights, Decision as to the Admissibility of 2 May 2007, Application no. 71412/01 (Agim Behrami and Bekir Behrami against France) and Application no. 78166/01 (Ruzhdi Saramati against France, Germany and Norway), para. 149. 101 ZIMMERMANN, Andreas, The Security Council and the Obligation to Prevent Genocide and War Crimes. Polish Yearbook of International Law , 2012, Vol. 32, p. 312. 102 Ibidem , p. 313. 103 European Court of Human Rights, Decision as to the Admissibility of 2 May 2007, Application no. 71412/01 (Agim Behrami and Bekir Behrami against France) and Application no. 78166/01 (Ruzhdi Saramati against France, Germany and Norway), para. 149. 104 While it is difficult to say in abstract terms when the line would be crossed, but one recognizes it when it happens. As an example of such interpretations can be taken from US understanding of “Military objective” as “war sustaining targets”, which is something which is deemed illegitimate by most states. See more in TURNS, David. Targets. In WHITE, Nigel D., HENDERON, Christian (eds.), Research Handbook on International Conflict and Security Law: Jus Ad Bellum, Jus in Bello and Jus Post Bellum. Edward Elgar Publisher, 2013, p. 266. 105 Mission here refers to a single sortie or task of the military force done in the armed conflict, while operation refers to the overall military campaign of the MMOs.

335