Rule 139. Each party to the conflict must respect and ensure respect for international humanitarian law by its armed forces and other persons or groups acting in fact on its instructions, or under its direction or control.
Volume II, Chapter 40, Section A.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The term armed forces, as used in the formulation of this rule, must be understood in its generic meaning.
The obligation of States to respect international humanitarian law is part of their general obligation to respect international law. This obligation is spelled out in the 1929 and 1949 Geneva Conventions.
Common Article 1 of the 1949 Geneva Conventions, however, has enlarged the formulation of this requirement to incorporate an obligation to ensure
respect for international humanitarian law.
This obligation to respect and ensure respect is also found in Additional Protocol I.
The obligation to respect and ensure respect for international humanitarian law is found in numerous military manuals.
It is supported by the practice of international organizations
and international conferences.
There is also international case-law in support of this rule.
A State’s obligation pursuant to this rule is not limited to ensuring respect for international humanitarian law by its own armed forces but extends to ensuring respect by other persons or groups acting in fact on its instructions, or under its direction or control. This is a corollary of Rule 149, according to which States incur responsibility for the acts of such persons or groups, and is supported by international case-law to this effect.
In addition, some military manuals and national legislation affirm that States are under an obligation to ensure that civilians do not violate international humanitarian law.
This obligation is also recalled in a resolution of the UN Security Council.
It was already recognized in case-law after the Second World War.
The obligation of States to issue orders and instructions to their armed forces which ensure respect for international humanitarian law was first codified in the Hague Conventions of 1899 and 1907 and is reiterated in the Hague Convention for the Protection of Cultural Property, Additional Protocol I and Amended Protocol II to the Convention on Certain Conventional Weapons.
This obligation is also set forth in many military manuals.
While most military manuals instruct each soldier to comply with international humanitarian law, many contain specific provisions requiring commanders to ensure that troops under their command respect the law and that orders and instructions to that effect are issued. Compliance with this obligation may be achieved in a number of ways, for example, through military manuals, orders, regulations, instructions and rules of engagement.
The requirement that armed opposition groups respect, as a minimum, certain rules of international humanitarian law applicable in non-international armed conflicts is set forth in common Article 3 of the Geneva Conventions.
This requirement is also set forth in the Hague Convention for the Protection of Cultural Property and its Second Protocol and in Amended Protocol II to the Convention on Certain Conventional Weapons.
While Additional Protocol II is less clear in spelling out the requirement that all parties to the conflict are bound by its rules, in particular because all references to “parties to the conflict” were removed, the Protocol develops and supplements common Article 3 of the Geneva Conventions and is binding upon both government forces and armed opposition groups.
The United Nations and other international organizations have on numerous occasions recalled the duty of all parties to non-international conflicts to respect international humanitarian law. The UN Security Council, for example, has stressed this obligation with respect to the conflicts in Afghanistan, Angola, Bosnia and Herzegovina, the Democratic Republic of the Congo and Liberia.
Similarly, the UN General Assembly has on numerous occasions affirmed the principle that all parties to any armed conflict are bound to respect international humanitarian law.
The UN Commission on Human Rights made similar assertions in resolutions on Afghanistan and El Salvador.
The obligation to ensure
respect for international humanitarian law is set forth in a number of instruments also pertaining to non-international armed conflicts.
The UN Security Council has also recalled this obligation in relation to the conflicts in Angola and Liberia.
The ICRC has called on numerous occasions upon all parties to non-international armed conflicts to respect and ensure
respect for international humanitarian law, for example, with respect to the conflicts in Afghanistan, Angola, Bosnia and Herzegovina, Somalia and the former Yugoslavia.