Afternoon Rapporteur Session One

• Publication year: 2017
• Citation: Vol. 45 No. 3

AFTERNOON RAPPORTEUR SESSION ONE

Student Rapporteurs: Michael Baker^* & Nichole Novosel^**

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International humanitarian law regulates the conduct of armed conflict and seeks to limit its effect by protecting people who are not participants in the hostilities. The Geneva Conventions and Additional Protocols, serve as the basis for international humanitarian law, calling for measures to be taken to prevent or put an end to all breaches. Commentaries on these Conventions serve as guidance for States' implementation of these Conventions. In 2016, for the first time since 1952, the International Committee of the Red Cross (ICRC) issued Updated Commentaries on the First Convention which gives rise to a series of questions States have to face. At a very basic level, there is a question of what the obligation to ensure respect for the Geneva Conventions means and what the scope of the obligation is.

I. THE DUTY TO ENSURE RESPECT

The 2016 Commentaries on Common Article 1 suggest an expansion of the meaning of ensuring respect from the 1952 Commentaries.¹ The expansion of this obligation has been a point of contention among States. Paragraph 164 demands that States "must take proactive steps to bring violations of the Conventions to an end and to bring an erring party to a conflict back to an attitude of respect for the Conventions."² Importantly, this language highlights a shift from ensuring respect internally, within the state, to an external obligation regarding other erring parties.

In reference to Common Article I, there has been debate on what "undertake," "respect," and "ensure respect" mean. One view suggests that "undertake" imposes a legal obligation on States to make certain other States

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ensure respect for the Geneva Conventions. The United Nations Security Council Resolution 681, in December 1990, was consistent with this view, "call[ing] upon the High Contracting Parties . . . to ensure respect by Israel . . . for its obligations under"³ the Geneva Conventions, thereby assigning an obligation to all States. This obligation reflects the idea of the States' collective responsibility to ensure respect for the Geneva Conventions, so that when one state invades another, an obligation for the international community arises to take a proactive role of ensuring respect through positive action, not just for those two state actors. Proponents of an expansion argue that a high standard may require States to think of international humanitarian...