In the introductions to each of its three updated Commentaries on the Geneva Conventions, the ICRC sets out its methodology and includes references to other areas and rules of international law that are relevant to the interpretation and application of the Conventions. A new addition to this list found in the recent updated Commentary on the Third Geneva Convention (GCIII) is the law on State responsibility (paras 110–15). There, the ICRC sets out some examples of the relationship between GCIII and the secondary rules on State responsibility. For example, and as Kubo Mačák has explored in more detail, the secondary obligation on States to cease a continuing breach of an international obligation (Article 30 of the ILC Articles on State Responsibility (ARSIWA)) applies in the context of POW internment so as ultimately to require release and repatriation where the detaining State is unable to adhere to the treatment and detention standards in GCIII.

A slightly different aspect of this relationship between GCIII and the law on State responsibility is where the former contains primary rules that operate as a lex specialis relative to the latter. As recognized by Article 55 ARSIWA, the nature of the primary/secondary rule distinction is such that the general secondary rules may be modified, excluded or supplemented in their application in specific areas, by virtue of the primary rules. The introduction to the new GCIII Commentary gives some examples of this, including the argument that the circumstances precluding wrongfulness listed in the ILC Articles are not available in relation to violations of basic rules of international humanitarian law (IHL) (para 112).

This post is interested in another example of the primary rules in GCIII departing from the secondary rules on State responsibility, namely in relation to the ICRC’s interpretation of the negative and positive obligations on States under common Article 1. Much has been written already on the view (supported by the ICRC) that the ‘ensure respect’ limb of common Article 1 creates both negative obligations ‘neither [to] encourage, nor aid or assist’ violations of IHL by others and positive obligations to ‘do everything reasonably in their power to prevent and bring such violations to an end’ (para 187).

The aim here is not to rehearse those arguments (though, for reasons set out in a forthcoming article, I do generally support the ICRC’s interpretation). Instead, the aim is to consider a few ways in which the ICRC’s interpretation of the ‘ensure respect’ obligation relates to and departs from certain general rules in the law on State responsibility that similarly create obligations in relation to the conduct of others. In particular, a comparison is drawn with Article 16 ARSIWA (which broadly mirrors the negative obligations in common Article 1) and Article 41 ARSIWA (which contains similar positive obligations). Before comparing in turn these different sets of negative and positive obligations, the general scope of these different provisions will first be compared.

Scope

The common feature of Article 16 ARSIWA, Article 41 ARSIWA, and (according to the ICRC) common Article 1 is that they place obligations on States in relation to the conduct of others. Article 16 prohibits States from aiding or assisting in internationally wrongful acts by other States, whilst Article 41 sets out an aggravated regime of responsibility placing secondary (negative and positive) obligations on all States in response to serious breaches of peremptory rules. The scope of common Article 1, according to the updated ICRC Commentaries, is different in two key respects: the type of breach triggering its application and the type of actor committing the underlying breach.

First, common Article 1 creates obligations for all States arising from violations of the Conventions (or IHL generally, in the ICRC’s view: para 159). In this sense, common Article 1 sits between Article 16 (with its broader scope of application) and Article 41 (with its narrower scope of application only to serious breaches of peremptory rules).

Second, whereas Articles 16 and 41 only apply where the underlying breach is committed by a State, common Article 1 applies in relation to IHL violations by States or non-State armed groups. This is a crucial way in which common Article 1, on the ICRC’s reading, offers a much-expanded basis for holding States indirectly responsible in relation to the wrongful conduct of others. Though there is some support for a non-State analogue to Article 16 (see, e.g., Jackson, p 214; Goodman/Lanovoy), the general view is that it is limited to State-to-State aid or assistance (Moynihan, p 23). Given the ubiquity of foreign State support of armed groups (such as western States’ support for Syrian armed groups, Russian support for armed groups in eastern Ukraine, the alleged support of the Houthis by Iran), the possibility of holding States responsible for their support of IHL violations by armed groups helps to address an important accountability gap otherwise left by Articles 16 and 41 (the only alternative is direct responsibility through attribution, which has a notoriously high threshold—see Hathaway et al).

Negative obligations

As noted, both common Article 1 (according to the ICRC) and Article 16 ARSIWA contain negative obligations derived from another’s wrongful conduct. (Whilst Article 41 also contains negative obligations, these are of a different, ex post facto nature to those in common Article 1 and Article 16.) There are two significant ways in which the ICRC’s reading of common Article 1 and Article 16 might be compared: the question of fault and the prohibition of encouragement.

On the question of fault, what degree of knowledge, recklessness or intent is required on the part of the assisting State to generate derivative responsibility under Article 16 is famously contested. Whereas the text of Article 16 itself refers to the prohibition of aiding/assisting in wrongful conduct ‘with knowledge of the circumstances of the internationally wrongful act’, the Commentary states that Article 16 does not bite ‘unless the relevant State organ intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct’ (p 66, para 5). The ICRC argues that this is a key difference between Article 16 and common Article 1, which it considers as requiring mere knowledge by the assisting State that its assistance will be used to commit IHL violations. It gives the following example where the difference might be dispositive:

‘Financial, material or other support in the knowledge that such support will be used to commit violations of humanitarian law would therefore violate common Article 1, even though it may not amount to aiding or assisting in the commission of a wrongful act by the receiving States for the purposes of State responsibility’ (para 193).

In reality, this difference between common Article 1 and Article 16 may not be so stark, as even if some form of intent is required under the latter, oblique intent would likely suffice: ‘if aid is given with certain or near-certain knowledge as to the outcome, intent may be imputed’ (Crawford, p 408). What is more, should a case be litigated, certain or near-certain knowledge would likely need to be inferred by the court based on the circumstances (Moynihan, pp 21–2). On this reading, the example above would likely fall within the scope of Article 16 and common Article 1.

A much clearer distinction between the negative obligations under common Article 1 and Article 16 ARSIWA is the former’s prohibition of ‘encouragement’ of IHL violations. Encouragement or incitement by one State of internationally wrongful acts by another are specifically excluded from the scope of the ILC’s Articles on derived responsibility (p 65, para 9). Indeed, the common view is that international law does not generally prohibit incitement or encouragement of violations short of positive action that makes a material contribution to the wrongful conduct (Jackson, p 154; Ago, pp 54–6).

The inclusion of a prohibition of encouragement in common Article 1 thus arguably fills a major gap otherwise left by international law at least in the context of armed conflict. The ICRC relies in part on the ICJ’s Nicaragua judgment, in which the Court held common Article 1 to prohibit encouragement of IHL violations (para 220). When the Court came to find the United States responsible for such encouragement by the contra rebels through its dissemination of a manual of psychological operations, however, it clarified that, for encouragement to be unlawful, ‘it is material to consider whether that encouragement was offered to persons in circumstances where the commission of … [IHL violations] was likely or foreseeable’ such that it ‘was likely to be effective’ (para 256). The ICRC Commentary is silent on whether it imports this restriction into its interpretation of common Article 1.

However, given that encouragement of IHL violations necessarily includes an intention so to encourage, the encouraging State is arguably sufficiently culpable so as to justify responsibility without the need for an additional effectiveness requirement. Indeed, there is a strong argument that the prohibition of encouragement in common Article 1 should be read not as another form of derived responsibility, but rather as an inchoate offence (a similar argument has been made by Wilson with regard to the crime of incitement to commit genocide).

Positive obligations

Both common Article 1, on the ICRC’s reading, and Article 41 ARSIWA contain not only negative obligations but also positive obligations requiring action by States in relation to violations by others. I have already noted the very different scope of common Article 1 and Article 41, i.e. the former’s application to any Convention (or IHL) violation by any actor compared with the latter’s restriction to serious breaches of peremptory norms by other States. There are two further differences that are particularly noteworthy: the obligation of prevention in common Article 1 and the nature of the measures required under each.

The ICRC in its updated Commentaries interprets common Article 1 as requiring reasonable measures by States to prevent foreseeable IHL violations by other actors and to bring such violations to an end. The positive obligation in Article 41, in contrast, is limited to the latter, i.e. an obligation to bring serious breaches of peremptory rules by other States to an end. This is a consequence of Article 41’s place as a special regime of responsibility, specifying secondary obligations arising following a serious breach of peremptory rules. The inclusion of the obligation of prevention in common Article 1, an obligation of conduct, thus helps to address an important gap in the rules on State responsibility, namely with regard to omissions. Indeed, Article 16 ARSIWA is viewed as requiring positive action to engage the responsibility of the assisting State; complicit omissions are often not considered to fall within the provision (Crawford, pp 403–5). An obligation of prevention in common Article 1, however, would capture omissions by States that are in a position to affect the (wrongful) conduct of others, and the diligence required would increase in situations where the principal is a partner State or armed group.

What is more, whilst Article 41 focuses on collective action, the ICRC considers common Article 1, consistent with its language, as not giving primacy to collective over individual measures (para 211). The positive measures expected under Article 41 would typically be institutional, in the context of the UN or a regional organization, as emphasized by the ICJ in the Israeli Wall advisory opinion (paras 160 and 163(E)) (the Court also affirmed the positive obligations under common Article 1, at paras 158–9). By not presuming collective over individual action, this reading of common Article 1 makes clear that the positive obligations place demands on States individually, which again is particularly important where a State supports or engages in partnered operations with the principal.

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The ICRC’s reading of common Article 1 positions it as an important lex specialis rule. It provides for a much-expanded basis for ancillary responsibility and positive obligations in relation to violations by others than exists under the general secondary rules on State responsibility. As shown above, this fills a number of gaps left by those secondary rules that are especially fundamental in the context of armed conflict, e.g. complicity in wrongs by non-State armed groups, encouragement/incitement of wrongful conduct, and omissions that contribute to wrongs by other actors.

See other posts in this blog symposium:

• Ahmed Al-Dawoody, GCIII Commentary: an Islamic perspective on the treatment of prisoners of war, January 26, 2021
• Asanga Tilakaratne, Peter Harvey, Sunil Kariyakarawana, Andrew Bartles-Smith, GCIII Commentary: a Buddhist perspective on the treatment of prisoners of war, January 19, 2021
• Kelisiana Thynne, GCIII Commentary Symposium: “Preparations Have Been Made in Advance”–GCIII and the Obligation to Respect and Ensure Respect by Preparing for Retaining POWS, January 27, 2021 (published in Opinio Juris)
• Chanel Chauvet, GCIII Commentary: Prisoners of War Remittances–Financial Challenges of Sanctions and Conversion Rates, January 21, 2021 (published in Opinio Juris)
• Cordula Droege, GCIII Commentary: ten essential protections for prisoners of war, July 23, 2020
• Kubo Mačák, GCIII Commentary: If I can’t feed you, do I have to let you go?, October 22, 2020