PART 1
It is apparent that the international community benefits from the International Court of Justice (ICJ)’s role in developing and clarifying key principles of international law, which can also help settle future disputes. The Court, in the Northern Cameroons case (Cameroon v. United Kingdom), contends that its rulings must actually affect the parties involved in the dispute before it, emphasizing that the “[c]ourt’s judgment must have some practical consequence” (p. 34). By acknowledging the significance of the aforementioned role, a possible way the Court could ensure that its rulings have “practical consequence” would be to develop international law by making third-state obligations clear under Common Article 1 (CA1) of the four Geneva Conventions of 1949 and by taking into account the subsequent state practice on that provision.
This article will address three aspects: the external dimension of CA1, the development of the subsequent practice for its implementation, and the States’ obligations in the event that CA1 is breached. These three aspects are connected to one another in some way. States must take positive actions in order to comply with CA1’s external dimension. States’ practice forms subsequent practice, and third States are obliged to act in accordance with the Jus Cogens norms.
Common Article 1 and its external dimension
In Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), [hereinafter referred to as the “Occupied Palestinian Territory case”], German legal counsel states that “the obligation to ensure respect embodied in common Article 1 can do no more than suggest that all States must conduct a proper risk assessment” (p. 38, para 27). The German legal counsel also acknowledges the positive obligation contained in CA1 by stating that “Germany only supplies arms on the basis of detailed scrutiny, a scrutiny that not only respects, but far exceeds the requirements of international law” (p. 12, para 24). Indeed, the Lex Lata suggests exactly the reverse. In accordance with CA1, the duty to ensure respect consists of both positive and negative obligations.
The 2016 ICRC Commentary clarifies that:
“153 The obligation to ensure respect also has an external dimension related to ensuring respect for the Conventions by others that are Party to a conflict. Accordingly, States, whether neutral, allied or enemy, must do everything reasonably in their power to ensure respect for the Conventions by others that are Party to a conflict.
170 The fact that common Article 1 is part of an international treaty, however, means that it is not a loose pledge but a commitment vested with legal force. This was affirmed by the International Court of Justice in the Nicaragua case where the Court considered that the clause reflected a legal obligation.[94] The term ‘undertake’ used in common Article 1 also underlines the High Contracting Parties’ commitment to ensure respect by others. In its ordinary meaning to ‘undertake’ means to ‘formally guarantee, pledge or promise’.[95]” [emphasis added]
In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the ICJ held that:
“It is not merely hortatory or purposive. The undertaking is unqualified …; and is not to be read merely as an introduction to later express references to [other obligations].” Merits, Judgment, 2007, para. 162).
In the wall advisory opinion, the ICJ confirmed the existence of an external dimension of CA1 by indicating that:
“follows from that provision that every State party to that 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” (Wall advisory opinion, para. 158).
We believe the Court developed and presented a correct interpretation of CA1 that under the law of State responsibility (Article 48 of ARSIWA), it is meant to impose obligations on third States with regard to the action of that State that is not a party to the ‘specific conflict’.
Subsequent practice in relation to the implementation of the CA1
Although we believe that a treaty shall be interpreted in good faith in accordance with the general principles of interpretation (Articles 31 and 32 of the VCLT), the ICJ employed the subsequent practice of the parties as a means of interpretation in the Nuclear Weapons Advisory Opinion (para. 19.). The ILC Draft of 1966 provided in its Article 38 that “a treaty may be modified by subsequent practice.” (YBILC 1966 II, 236 f).
The International Committee of the Red Cross (ICRC) states, that “common Article 1 does not add anything new to what is already provided for by general international law” (2020 ICRC, Commentary toGC III, para. 177). As a matter of fact, nothing new needs to be added to international law. The Court just needs to take international organizations’ resolutions into account as a subsequent practice.
Pursuant to CA1, High Contracting Parties are obligated to fulfill specific negative obligations, and they are prohibited from supporting, promoting, or assisting parties to a conflict in violating the Conventions. In this regard, the UN Security Council, in Resolution 681 “Calls upon the High Contracting Parties to the said Convention to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1 thereof” (para 5). Additionally, the Human Rights Council passed a landmark resolution on 26 March 2024, calling on “all States to cease the sale, transfer and diversion of arms, munitions and other military equipment to Israel, the occupying Power, in order to prevent further violations of international humanitarian law and violations and abuses of human rights” (para. 13). The EU Council also confirmed this interpretation:
“Common Article 1 of the Geneva Conventions is generally interpreted as conferring a responsibility on third party states not involved in an armed conflict to not encourage a party to an armed conflict to violate international humanitarian law, nor to take action that would assist in such violations, and to take appropriate steps to cause such violations to cease.”
PART 2
High Contracting Parties to Geneva Conventions of 1949 have also a positive obligation, which requires them to take all reasonable steps to stop and prevent these violations. Undoubtedly, it is challenging to determine the exact content of this positive duty in the abstract; however, this challenge does not prove the nonexistence of the obligation. The legal obligations of Germany under the Council of the European Union’s Common Position 2008/944/CFSP of 8 December 2008 Defining Common Rules Governing Control of Exports of Military Technology and Equipment (Article 2(2) in particular) and the Arms Trade Treaty (Article 7, hereinafter ATT), Cn help to understand the external dimension of the CA1 of the Geneva Conventions. On 12 February 2024, the Court of Appeal in The Hague interpreted the Netherlands’ obligations under the EU Common Position and ATT in accordance with positive obligations encompassed by CA1 and held that States must take positive steps to bring third States to act in accordance with the Geneva Conventions (Para 3.12; see also the Analysis of the Dutch court’s ruling here).
A party’s conduct in implementation of the treaty, whether they are in the course of performing their executive, legislative, judicial, or other functions, may constitute subsequent practice under articles 31 and 32. Because of this, decisions made by state domestic courts, state will in the joint policy (EU Common Position), affirmative votes in favor of a resolution prohibiting the transfer of weapons during flagrant violations of IHL or accession to the ATT may all be regarded as subsequent practices. It is worth noting that the Dutch court has considered all previously stated legally binding instruments and has provided a reading of CA1 that is more consistent with our comprehension of this article. The more serious the breach of international humanitarian law, the more is expected of another State to stop the breach. This is an obligation to use best efforts: a state is obliged to do what is reasonably within its power in the given circumstances. More specifically, it must be held that the obligation laid down in CA1 means that, if a State is aware that another is committing serious violations of international humanitarian law with the aid of the weapons supplied by the first State, it is contrary to CA1 to transfer such arms deliveries.
The number of states that have joined the Arms Trade Treaty, voted in favor of UN resolutions, or endorsed this view by the EU Council, all indicate that the subsequent practice modifies CA1 that weapons should not be provided to violators of international humanitarian law.
Third States’ obligations vis-à-vis Common Article 1 and Jus Cogens
In the oral proceeding of the Occupied Palestinian Territory case, the German legal counsel argues that “aid and assistance must be given with knowledge of the circumstances, and with the intention to facilitate the occurrence of the wrongful act [commission of genocide]” (p. 36, para 23). However, we aim to clarify third states’ obligations in cases of grave breaches of international humanitarian law, regardless of whether or not such violations constitute complicity in genocide.
The ILC has identified that “the basic rules of international humanitarian law” as jus cogens, and CA1 is one of the basic rules of IHL. The ICRC’s 2020 Commentary on the Geneva Convention III (Prisoners of War) conceded, “there is disagreement as to the legal nature of the positive component of the duty to ensure respect by others because the content of the obligation is not clearly defined and its concretization to a large extent left to the High Contracting Parties” (para. 202).
The German legal counsel indicates that “protection of Israeli security and support for the rights of Palestinians have required Germany to make difficult choices.” (p. 12, para 25). Germany argues that it must make difficult decisions. Jus cogens must always be applied where there is a conflict between adhering to foreign policy principles and violating preemptory rules of international law and Germany should not find itself in a precarious position where it must make a tough decision.
If we consider general international law or any field of it as an integrated legal system, jus cogens safeguards the entirety of these regimes, whether the goal of a legal regime is to uphold human dignity, preserve peace, or meet the collective needs of the international community. Jus cogens employs a variety of instruments to address these objectives, including preventing the dissolution of a single legal system vis-à-vis unilateral or bilateral acts of States, managing the outcomes of bilateral relations within a legal system, thereby possessing an anti-fragmentation quality.
In the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the reservations to this convention were declared invalid by the ICJ for two reasons: (1) they contradict the objects and purposes of the convention; and (2) and “in such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest” (advisory opinions, p.23) Therefore, we concur with Judge Momtaz and Judge Trindade that jus cogens enlarges the ambit of operation of a true international ordre public, carries out the higher interests of the international community as a whole, and stresses the necessity of judicial control of the observance of the peremptory norms of international law.
The Court can now perform its judicial control and clarify the third states’ obligations with respect to CA1 and uphold ordre public, protect the treaty’s integrity, and represent the states’ responsibility to the entire international community. This is the ideal time for the Court to go one step further and thoroughly clarify the positive obligation of CA1. Although States are under an obligation to “employ all means reasonably available to them to prevent genocide”, as the Court held in Occupied Palestinian Territory case (Order of 30 April 2024, para 23), reiterating previous rulings does not develop international law or prevent genocide. In Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), the Court recommended “bilateral engagement or exchanges within a regional organization” as a solution (Order of 16 March 2022, para. 57). In the event that the Court in the prior case proposed “bilateral engagement”, it may rule in the Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany) case-taking into account the interpretive component of subsequent practice in CA1-that States ought not to arm or otherwise assist those who flagrantly violate international humanitarian law.
Author
Yaser Salarian is a lawyer and legal expert renowned for his insights into international law, particularly in the areas of sanctions, international humanitarian law, and disarmament. With a master’s degree from the School of International Relations, Salarian’s academic foundation is as solid as his professional reputation. His notable works include articles delving into the interpretation of Security Council resolutions and the jurisprudence of the International Court of Justice. Beyond his scholarly pursuits, Salarian is involved in providing international law consultations and fostering scientific cooperation with institutions.
Hamed Esmaeilpour is a lawyer, legal researcher, and university lecturer specializing in international law, stands at the forefront of human rights advocacy. He holds a doctorate degree from Allameh Tabataba’i University and his expertise shines through in his book, “The right to liberty and security of person in the European Court of Human Rights jurisprudence”. Outside the realm of academia, Esmaeilpour is committed to providing international law consultations and fostering scientific partnerships with institutions.
