Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?

Common Article 1 of the 1949 Geneva Conventions is today generally seen as a ‘quasi-constitutional’ international law rule, premised on the doctrine of obligations erga omnes and imposing on all contracting states an obligation to take a variety of measures in order to induce not only state organs and private individuals but also other contracting states to comply with the Conventions. The phrases ‘ensure respect’ and ‘in all circumstances’ contained therein, in particular, have been understood to imply a ‘state-compliance’ meaning, drawing basically upon the ICRC Commentaries to the 1949 Geneva Conventions and to the 1977 Additional Protocols. However, expressions similar to ‘ensure respect’ in human rights treaties, in other provisions of the Geneva Conventions themselves, and in military manuals have been given an exclusive ‘individual-compliance’ meaning. Lists of measures available to contracting states against other contracting states deemed to be in breach of the Conventions have been suggested without investigation of whether such measures were per se lawful or unlawful and whether their adoption was legally required, or authorized, or merely recommended under common Article 1. Measures the adoption of which is expressly required or authorized by ad hoc provisions of the Geneva Conventions have been redundantly linked to Article 1. The phrase ‘in all circumstances’ too has a variety of meanings already found in ad hoc provisions other than Article 1. Ultimately, the purported ‘quasi-constitutional’ character of common Article 1 has proved a subject of speculation. Common Article 1 is a reminder of obligations, negative and positive, to ‘respect’ the Geneva Conventions (according to the general pacta sunt servanda rule) which has progressively been given the meaning of a mere recommendation to adopt lawful measures to induce transgressors to comply with the Conventions.