Abstract
Common Article 1 to the four 1949 Geneva Conventions requires Parties to those instruments to “respect and to ensure respect for the present Convention in all circumstances.” The provision is a corollary to the general international legal obligation of States to honor their treaty commitments, expressed classically in the maxim pacta sunt servanda.
Yet, academics and private organizations now use Common Article 1 as a vehicle to reimagine States’ enforcement obligations under the Geneva Conventions. Reinterpreting the article beyond its original meaning, they claim the article includes an “external” obligation—a duty on the part of all States to use all available means to ensure respect for all provisions of the Conventions by all other States during all armed conflicts, even those to which the State in question is not a party. The ICRC has adopted this position in its influential updated commentaries on the Geneva Conventions.
We reject assertions that the term “ensure respect” ever encompassed an external obligation or that its meaning has evolved to do so. The requisite State practice engaged in out of a sense of legal obligation is simply lacking. In our view, “ensure respect” refers to the duty of parties to an international armed conflict to take measures to ensure their nationals and others under their control comply with the Conventions. The term imposes no obligations on States that are not party to an armed conflict, apart from those few obligations that expressly bind them during peacetime.
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