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THE EU AND THE OBLIGATION TO ENSURE RESPECT OF INTERNATIONAL HUMANITARIAN LAW UNDER THE GENEVA CONVENTIONS

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Common Article 1 to the four Geneva Conventions of 1949, the bedrock of international humanitarian law, requires that States party to the Conventions respect and ensure respect of the principles and the norms enshrined therein. Whereas the prescriptive power of the first part of the obligation is straightforward and has never been called into question, doubts have at times been raised as to the exact nature and scope of the duty to ensure respect of international humanitarian law, especially as regards the question of its binding nature. The problem is not merely theoretical. Going by its literal its formulation, the duty indicated under the second part of Article 1 would fall on States that do not take part in a conflict, and regulate their relationship with those States that do. For example, what should States do in the face of the evident breach of the most basic principles of international humanitarian law in the context of the Syrian civil war? Is the duty to ensure respect the benchmark to measure their response?

The problem of the scope of the second part of Article 1 common to the four Geneva Conventions originally presented itself in 1968 in Teheran, in the context of the UN Conference on International Human Rights. The preamble of Resolution XIII adopted at the Teheran Conference referred to the “responsibility” of States to “take steps to ensure respect of (…) humanitarian rules in all circumstances by other States, even if they are not themselves directly involved in an armed conflict”. Even though the term “responsibility” was probably employed in a non-technical manner, there seems to be sufficient practice to suggest that the duty not only to respect, but to ensure respect of international humanitarian law, has binding character and is not a void formula. Quite apart from the practice of the Security Council and other bodies of the United Nations, it seems that, from the legal perspective, the International Court of Justice is the body that has expressed this view with the greatest degree of authoritativeness. In the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court expressly said that “every State party to [the Fourth Geneva 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.”

There are various instances of EU practice that support the finding on the compulsory nature of the obligation to ensure respect with IHL, and even clarify the scope of the provision. One such instance is constituted by the support that the EU lent to the implementation of the Arms Trade Treaty of 2013. Article 6 of the Treaty provides for a ban on exportation of weapons in all instances when the exporting State has knowledge, at the time of authorization, that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which the exporting State is a Party. This is a clear manifestation of the obligation to ensure respect of international humanitarian law, which the EU supported with an ambitious implementation plan under Council Decision 2013/768/CFSP.

Another important instance is constituted by the EU stance on the war in Syria. In a Statement made in 2014 to the United Nations, the EU said that “The lack of respect for international humanitarian law and human rights is appalling and concerns us all... Common article 1 of the Geneva Conventions clearly requires that all the contracting Parties, “undertake to respect and to ensure respect” for the conventions “in all circumstances”. Thus, it is a collective obligation on all of us not only to respect but also to ensure that the parties to the conflict respect their humanitarian obligations. We need to ensure actual enforcement of the obligations.”

The EU statement of 2014, and others that followed, must be read in conjunction with the guidelines adopted by the EU in 2005, on the measures to secure the implementation of IHL by third Countries. These include, for instance, that when violations of IHL are reported, the EU should consider making demarches and issuing public statements condemning such acts and demanding that the parties fulfill their obligations under IHL and undertake effective measures to prevent further violations. Also, and on a more robust level, that the EU should encourage third States to enact national penal legislation to punish violations of IHL and adopt measures to assist the ICC in prosecuting war criminals. The EU can also consider the possibility to adopt sanctions, if this is required to ensure respect of IHL.

In conclusion, the role of the EU in its approach to the Syrian civil war, and more generally, in its approach to the implementation of IHL by third States, gives substance to the binding nature of Article 1 and helps clarify its scope, also with respect to the actual content of the obligation to ensure respect. In this regard, the reference to common Article 1 in the EU Statements and actions is most welcome, also as an attempt to clarify and advance international law, in line with the EU’s role as a virtuous actor of the international legal order.

 Post by Paolo Busco

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