CYIL vol. 8 (2017)

TUOMAS HEIKKINEN – MARTIN FAIX

CYIL 8 ȍ2017Ȏ

5. Conclusion Common Article 1 requires States to take measures to ensure the respect of the Geneva Conventions of other parties, even in cases where the State in question is not a party to the conflict. Such an obligation has developed by the subsequent practice of the state parties throughout the years. Some criticize the state practice as being inadequate and too deficient. However, if one were to employ Common Article 1 obligation as a due diligence obligation, forcing states to take measures only when there are legitimate expectations for success, the state practice would be a lot more complete and acceptable. That line of construction would be on par with the Genocide Convention’s similar obligations, as interpreted by the ICJ in its Genocide case. 106 Therefore, one of the more important parts of Common Article 1 is that it brings forward obligations for state parties to the MMOs beyond those that arise from secondary rules of attribution or responsibility. It binds States to vote and use their powers in the MMO relevant decision-making process within the operation itself or within the international organization in a way that would ensure the respect of Common Article 1, even when the conduct within the decision-making process would not be attributable to the State but to the organization itself. Practice has shown that the Troop Contributing States often are in close positions to their allies and are able to influence their decisions better than those outside the loop. Such an approach therefore means that multinational operations would be, in fact, obligated to decline TCS’ interpretations of IHL that would go beyond the accepted conduct in cases where the decision-making process involves Member States and they have sufficient capability to enforce their IHL interpretations.

106 International Court of Justice: Judgment of 11 July 1996, Application of the Convention on the Prevention and Punishment of the Crime of Genocide… para. 440.

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