The Legal Expert Opinion Third States Obligations vis-à-vis IHL Violations under International Law with a special focus on Common Article 1 to the 1949 Geneva Conventions - authored by Dr. Théo Boutruche, Consultant in International Human Rights and Humanitarian Law and Prof. Marco Sassòli, Professor of public international law at the University of Geneva, Switzerland, and Associate Professor at the University of Quebec in Montreal, Canada - was requested in the context of the recently published 2016 Updated ICRC Commentary of the 1949 Geneva Convention I (GCI), in particular with regard to Common Article 1 and in light of the on-going debate over the attempts to address the ineffectiveness of existing means and mechanisms to ensure compliance with International Humanitarian Law, notably the obligations of third States vis-à-vis IHL violations committed by a Party to a conflict, such as the situation in the oPt.
It also aims at identifying the type of measures required by or allowed under such obligations. In that regard, the Expert Opinion focuses on the meaning, content and scope of the obligation to ensure respect for IHL contained in CA1 to the 1949 four Geneva Conventions (GCI-IV) and restated in Article 1 para. 1 of the 1977 Additional Protocol I. The unique nature of this obligation lies in assessing the extent to which CA1 serves as a basis for third States to adopt measures to induce compliance by Parties to an armed conflict in which the third States are not involved, and on the other hand what those measures should be.
The assessment of what is possible or not to do for a given State is an objective assessment, not entirely left to the State concerned alone and not to be based on political or policy related motivations. By definition the existence of a legal duty in the form of the obligation to ensure respect requires an objective assessment and prevents a State from using mere political considerations to claim that no step can be taken under that obligation. The fact that the fulfilment of an international obligation can prove to be politically difficult cannot serve as a ground to refuse to take any measure in the implementation of that obligation. This would run against the very nature of a legal obligation as opposed to a mere political preference. This is even more so when considering the purpose of the obligation to ensure respect for IHL.