[Just Security is publishing a series on the ICRC’s updated Commentaries to the Third Geneva Convention on Prisoners of War (2020). This GCIII Commentary series is published in collaboration with the ICRC’s Humanitarian Law & Policy blog and EJIL: Talk. The series editors for Just Security are Adil Haque and Ryan Goodman.]
Under Common Article 1 of the Four Geneva Conventions of 1949, state parties ‘undertake to respect and to ensure respect’ for these treaties ‘in all circumstances.’ There is a longstanding debate (see Kalshoven, Dormann and Serralvo, Henckaerts and Robson) on the breadth and depth of these obligations in Common Article 1, since the International Committee of the Red Cross (ICRC)’s Updated Commentaries to the First, Second and now Third Geneva Conventions. To date, the controversy has centered on the ICRC’s evolutive interpretation of ‘ensure respect,’ which (according to the Updated Commentaries) includes an inter-state due diligence obligation on non-belligerents to take ‘all reasonable measures’ to prevent and end violations by parties to a conflict; an ‘obligation of means’ and not of result. In this year’s Updated Commentary to the Third Geneva Convention, the ICRC acknowledges the ‘disagreement’ (para 202) around this interpretation, but concludes that the open-texture of Common Article 1’s phrasing is insufficient to deny (para 205) an erga omnes legal obligation stemming from ‘ensure respect.’
In this essay, I address the legal basis, normative desirability, practical and strategic implications of the ICRC’s interpretation. While the ICRC’s broad reading of ‘ensure respect’ as a de jure due diligence obligation is not fully made out, this debate is a distraction from the full potential of Common Article 1 and the Updated Commentary for international humanitarian law (IHL)’s implementation and enforcement. We need to unpack the potential of Common Article 1 for compliance in general, and for the protection of prisoners of war specifically.
Is the Updated Commentary’s reading of ‘ensure respect’ a de jure obligation?
Not entirely. The Updated Commentary is most persuasive in respect of the intra-state duties to ‘respect’ and ‘ensure respect’ for Geneva law – regardless of whether that is in peace or war and international or non-international armed conflicts regulated by Common Article 3. The Commentary rightly invokes pacta sunt servanda for these obligations, whether they are negative or positive obligations. Most of the specified duties to ‘ensure respect’ are intra-state, e.g. military instruction in IHL and the suppression of breaches (para 179). Here ‘ensure respect’ has a preventive and supervisory meaning; unaffected by the debates about broader diplomatic interventions under ‘ensure respect’.
Where the Updated Commentary’s interpretation is grounded in the law of state responsibility, this too has a solid legal basis. Para 177 speaks of the duty to ‘respect’ in relation to ‘State organs… volunteer or militia forces within the meaning of Article 4A (2) of the Third Convention, other armed groups under the requisite control of the State, and in certain cases private military and security companies…’ The ICRC’s interpretation of ‘ensure respect’ extends (again persuasively) to duties to refrain from participation in IHL violations in multinational operations (para 194). At paragraph 187, the duty to ‘ensure respect’ includes a ‘negative… obligation’ ‘neither [to] encourage, nor aid or assist in violations,’ which is consistent with the ICJ’s opinions in Nicaragua, Wall and DRC v Uganda; Rule 139 of the ICRC Customary IHL Study (confined to ‘[e]ach party to the conflict’), and Article 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts.
The ICRC acknowledges that its outward-facing interpretation of ‘ensure respect’ goes beyond pacta sunt servanda (compare paras 176 and 187 of the 2020 Commentary), especially in relation to the broadly asserted obligation to ‘do everything reasonably in their power to prevent and bring such violations to an end’ (para 187). There are echoes of this broad-brush obligation in Rule 144 of the ICRC Customary IHL Study (especially ‘exert their influence, to the degree possible, to stop violations’). The Updated Commentary builds upon the ICRC’s consistent interpretation (see Pictet, Sandoz, and the Customary IHL Study Rules 139 and 144) that Common Article 1 requires states to do all in their power to ensure universal respect for IHL.
At paragraph 189, the Updated Commentary asserts: ‘Subsequent practice has confirmed the existence of an obligation to ensure respect by others,’ but the sources cited vary in their support for this assertion. Some sources offer stronger support (such as UN Security Council Resolution 681, which called on ‘high contracting parties to the Fourth Geneva Convention of 1949 to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1’). But other sources do not. For example the Tehran Conference Resolution on Human Rights in Armed Conflict 1968, notes in the preamble that states ‘sometimes fail to appreciate their responsibility to take steps to ensure the respect’ of the Four Geneva Conventions ‘by others.’ This is a descriptive ‘[n]oting’ of gaps in subsequent practice; not a resounding endorsement of subsequent practice in favor of the ICRC’s preferred interpretation. The ICRC, as a non-state actor might ‘provide valuable information about subsequent practice’ (according to the ILC Draft Conclusions of 2018) but its interpretations of that practice should be ‘critically reviewed.’
The Updated Commentary argues that IHL rules are erga omnes obligations (paras 152, 210, 211), but the sources given convey only an ‘entitle[ment]’ (Art 48(1)(b) ARSIWA) or ‘legal interest’ (Kupreškić , para 519, cited at note 112) to invoke the responsibility of any state for a breach of erga omnes obligations. This is insufficient to ground a due diligence obligation to ‘do everything reasonably in their power to prevent’ and end IHL violations. The Updated Commentary could be a valuable encouragement for states to use diplomatic outreach or sanctions against IHL violators, but only as a matter of policy.
Is it normatively desirable?
Here the answer is more finely balanced. The Commentary to Common Article 1 crafts an amalgam of pacta sunt servanda and due diligence, negative and positive obligations, inward- and outward-facing duties. These dualities do not map simply onto the ‘respect’ and ‘ensure respect’ limbs of Common Article 1, whatever the academic debate might suggest; nor is the bulk of the Commentary on Common Article 1 confined to diplomatic and/or sanctions-based approaches to ‘ensure respect.’ Instead, the Updated Commentary interprets negative and positive obligations, the treaty-based and due diligence obligations from both limbs; the beginnings of a blueprint for IHL’s implementation and enforcement. This is normatively desirable when IHL lacks an integrated account of its norms of implementation and enforcement. The Updated Commentary is useful in its insistence that states which are part of a multinational operation should ‘opt out of a specific operation if there is an expectation, based on facts or knowledge of past patterns, that it would violate the Conventions’ (para 194). This negative obligation is both ‘respect’ and ‘ensure respect’, and might be accompanied by the positive act of diplomatic outreach, or dialogue between military legal advisers.
Despite the contested legal basis of the ICRC’s interpretation of ‘ensure respect,’ there is value in scholarly deliberation as to the scope of due diligence obligations in IHL, and the use of due diligence concepts in the Updated Commentary are an attempt to integrate IHL with general international law. Heieck argues that all three Updated Commentaries endorse a due diligence standard on the basis of the ICJ’s Bosnian Genocide case (cited for context in the Updated Commentary at para 199); a case where the duty to prevent was confined to the particular context of the Genocide Convention. Due diligence or positive obligations are obligations of means and not result, and give discretion to states as to the steps they will take to implement the obligation (para 198). They are contextual; dependent on circumstances, the extent to which a violation is foreseeable, its seriousness, the means available to the state, and ‘the degree of influence it exercises’ (para 183).
Yet despite this flexibility, the Updated Commentary does not specify tests for the application of the outward-facing ‘ensure respect’ standard, as the European Court of Human Rights does as a prerequisite for the application of the operational obligation under Article 2 ECHR, for example (actual or constructive knowledge of a ‘real and immediate risk’ to an individual’s life: Osman para 116). This lack of precision risks states’ acceptance of the ICRC’s nascent due diligence standard. It recalls McDonald’s arguments that the creation of a general international law duty of due diligence might have a ‘chilling effect’ on states’ due diligence ‘activity,’ which takes place as a ‘flexib[le]’ combination of policy and legal obligation.
Is it practical and strategic?
The progressive and controversial extension of ‘ensure respect’ does have practical value, but only for well-resourced states which have the power to impose sanctions, or which hold a seat at the Security Council. An exhortation to these states to ‘do everything reasonably in their power to prevent and bring such violations to an end’ is a powerful political stance. McCrosker (in Massingham and McConnachie eds) points to the potential of withdrawing diplomatic recognition from a state which violates IHL, of sports boycotts, trade sanctions and assets-freezes.
Yet it is not strategic. Some vocal states will resist an expansion or evolutive interpretation of their treaty obligations, increasing the distance between expressed opinio juris and the ICRC’s interpretation of binding IHL. In the past decade, there has been a decline in multilateral consensus on IHL compliance. This can be tracked in the decreasing ambition of the principal resolutions in consecutive International Conferences of the Red Cross and Red Crescent (compare the breadth and ambition of the 2007 resolution with 2019’s Bringing IHL Home, where the operational paragraphs are confined to the domestic implementation of IHL only); and in the failure to reach consensus to establish regular meetings of states in the 2011-2015 Strengthening Compliance Initiative and the 2015-2019 intergovernmental process (ICRC Factual Report). These initiatives were substantially less ambitious than the contested due diligence obligation on third states to use diplomatic and other means to prevent and end IHL violations.
Does this debate distract us from the full potential of Common Article 1 and its Updated Commentary?
Yes. The Updated Commentary to Common Article 1 begins by noting that ‘respect and ensure respect’ applies ‘first and foremost to the High Contracting Parties themselves, to their armed forces, other persons and groups acting on their behalf’ (para 151), yet this is often forgotten in the academic debate.
The Commentary offers a blueprint for states’ intra-state due diligence, and integrates obligations of IHL implementation and enforcement at the domestic level, and in circumstances where other arms-carriers’ actions might be attributable to the state. The Commentary sketches a vertical meaning of ‘ensure respect;’ a set of due diligence obligations that operate from a state and throughout the command chain. The Commentary clarifies states’ negative obligations in multinational operations and in relation to arms transfers; it specifies the importance of training in IHL and suppression of violations. Its negative obligations: neither to encourage nor aid or assist violations of IHL are uncontested.
How can we unpack the potential of ‘ensure respect’ to improve the protection of prisoners of war?
There are few specific references to the Third Geneva Convention in the Updated Commentary to Common Article 1. This could be understandable, as it is the ICRC and not states which monitors detention conditions for prisoners of war, and the treatment of prisoners of war must remain outside public view. In the main text, there is one ‘duty to protect prisoners of war at all times, particularly against acts of violence or intimidation and against insults and public curiosity’ (para 185).
Para 201 specifies an ‘ensure respect’ duty (in addition to the specific obligation in Article 12(3) of the Third Geneva Convention) to ‘monitor the fate’ of detainees transferred to another party to the conflict and ‘if necessary, [to] exercise their influence in order to ensure observance of the Conventions by the receiving State.’ Note 94 recommends a ‘dialogue… post-transfer follow-up or capacity building’ throughout the chain of custody.
The Updated Commentary does not explain how the obligations in Common Article 1 relate to Article 13 on humane treatment or Article 17 on the questioning of prisoners of war, and this is a curious omission. Perhaps the duties to ‘respect and ensure respect’ are implicit in the text of the Commentary on these discrete obligations, but greater specificity would be welcome as to how states should approach these matters, e.g. in multinational operations and in their diplomatic efforts. In contrast, Article 12(1) on the Detaining Power’s responsibility for prisoners of war is expressly linked to the dissemination duty in Article 127 and to Common Article 1 (para 1518).
There are only brief references in the Updated Commentary to other Articles as they relate to Common Article 1. Note 47 to the Commentary to Article 8 on Protecting Powers suggests that the obligation to ‘ensure respect’ entails neutral states accepting a request that they act as a Protecting Power; a function which has not been formally adopted since the Falklands War in 1982. The Commentary to Article 9 (note 42) clarifies that the ICRC’s humanitarian assistance is not the expression of a legal obligation on the ICRC: the organization works to ‘ensure respect’ but it is states which must do so.
The Updated Commentary might have said more about the intra-state duties to ‘respect and ensure respect’ for the Third Geneva Convention, perhaps addressing the role of IHL training in relation to detainee treatment in particular (para 5027 of the Updated Commentary considers Article 127 on dissemination a corollary of Common Article 1, but does not examine this more deeply), and acknowledging as a matter of policy the importance of ‘informal norms’ (found to be influential in the ICRC’s Roots of Restraint in War study) so that custody officers’ compliance with IHL might be ensured.
The obligation to ‘respect and ensure respect’ for Geneva law ‘in all circumstances’ has been interpreted with breadth and depth in the Updated Commentary to the Third Geneva Convention. While the inter-state due diligence obligation crafted in the Commentary has a doubtful legal basis, and is unlikely to be universally implemented; the Commentary offers a blueprint for IHL’s implementation and enforcement. Debates on the legal basis of the ICRC’s outward-facing due diligence reading of ‘ensure respect’ should not be a distraction from the potential of the Updated Commentary for IHL compliance, and more can be done to unpack its potential to improve the protection of prisoners of war.
Tim Wood, GCIII Commentary: Removing ambiguity on the treatment of prisoners of war
Steven Hill, Geneva Convention III Commentary: Implementing POW Convention in Multinational Operations
Keiichiro Okimoto, The United Nations and the Third Geneva Convention
Catherine O’Rourke, Geneva Convention III Commentary: What Significance for Women’s Rights?
Kubo Mačák, GCIII Commentary: If I can’t feed you, do I have to let you go?
Jean-Marie Henckaerts, “Commentary: ICRC unveils first update in sixty years.”
Cordula Droege, GCIII Commentary: ten essential protections for prisoners of war
Jemma Arman, GCIII Commentary: protecting the honour of prisoners of war
Eden Lapidor, New Developments in ICRC Commentaries to the POW Convention