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.
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.[1] 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.[2] This obligation to respect and ensure respect is also found in Additional Protocol I.[3]
The obligation to respect and ensure respect for international humanitarian law is found in numerous military manuals.[4] It is supported by the practice of international organizations[5] and international conferences.[6] There is also international case-law in support of this rule.[7]
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.[8]
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.[9] This obligation is also recalled in a resolution of the UN Security Council.[10] It was already recognized in case-law after the Second World War.[11]
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.[12] This obligation is also set forth in many military manuals.[13] 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.[14] 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.[15] 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.[16]
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.[17] 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.[18] The UN Commission on Human Rights made similar assertions in resolutions on Afghanistan and El Salvador.[19]
The obligation to ensure respect for international humanitarian law is set forth in a number of instruments also pertaining to non-international armed conflicts.[20] The UN Security Council has also recalled this obligation in relation to the conflicts in Angola and Liberia.[21]
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.[22]
[1] 1929 Geneva Convention for the Protection of the Wounded and Sick, Article 25 (cited in Vol. II, Ch. 40, § 1); 1929 Geneva Convention Relative to the Treatment of Prisoners of War, Article 82 (ibid., § 2); 1949 Geneva Conventions, common Article 1 (ibid., § 3).
[2] Geneva Conventions, common Article 1 (ibid., § 3).
[3] Additional Protocol I, Article 1(1) (adopted by 87 votes in favour, one against and 11 abstentions) (ibid., § 4).
[4] See the military manuals of Argentina (ibid., § 15), Australia (ibid., §§ 16–17), Belgium (ibid., §§ 18–20), Benin (ibid., § 21), Cameroon (ibid., §§ 22–23), Canada (ibid., §§ 24–25), Colombia (ibid., §§ 26–27), Congo (ibid., § 28), Croatia (ibid., § 29), Ecuador (ibid., § 30), El Salvador (ibid., §§ 31-32), France (ibid., §§ 33–34) Germany (ibid., § 35), Israel (ibid., § 36), Italy (ibid., § 37), Kenya (ibid., § 38), Madagascar (ibid., § 39), Netherlands (ibid., § 40), New Zealand (ibid., § 41), Nigeria (ibid., § 42), Philippines (ibid., §§ 43–44), Russian Federation (ibid., § 45), Spain (ibid., § 46), Switzerland (ibid., § 47), Togo (ibid., § 48), United Kingdom (ibid., § 49) and United States (ibid., §§ 50–52).
[5] See, e.g., UN Security Council, Res. 822 (ibid., § 70) and Res. 853 (ibid., § 73); UN General Assembly, Res. 2674 (XXV) (ibid., § 90), Res. 2677 (XXV) (ibid., § 91), Res. 2852 (XXVI) (ibid., § 92), Res. 2853 (XXVI) (ibid., § 93), Res. 3032 (XXVII) (ibid., § 94), Res. 3102 (XXVIII) (ibid., § 95), Res. 3319 (XXIX) (ibid., § 96), Res. 3500 (XXX) (ibid., § 97), Res. 32/44 (ibid., § 98), Res. 47/37 (ibid., § 100) and Res. 48/30 (ibid., § 101); UN Commission on Human Rights, Res. 1994/85 (ibid., § 104), Res. 1995/72 (ibid., § 105) and Res. 1996/80 (ibid., § 105); Council of Europe, Parliamentary Assembly, Res. 1085 (ibid., § 114); OAS, General Assembly, Res. 1408 (ibid., § 116).
[6] See, e.g., 24th International Conference of the Red Cross, Res. VI (ibid., § 119); 25th International Conference of the Red Cross, Res. I (ibid., § 120); CSCE, Budapest Summit of Heads of State or Government, Budapest Document (ibid., § 123); International Conference for the Protection of War Victims, Final Declaration (ibid., § 122); 93rd Inter-Parliamentary Conference, Resolution on the International Community in the Face of the Challenges posed by Calamities Arising from Armed Conflicts and by Natural or Man-made Disasters: The Need for a Coherent and Effective Response through Political and Humanitarian Assistance Means and Mechanisms Adapted to the Situation (ibid., § 124); 102nd Inter-Parliamentary Conference, Resolution on the contribution of parliaments to ensuring respect for and promoting international humanitarian law on the occasion of the 50th anniversary of the Geneva Conventions (ibid., § 126); African Conference on the Use of Children as Soldiers, Maputo Declaration on the Use of Children as Soldiers (ibid., § 125); Conference of High Contracting Parties to the Fourth Geneva Convention, Declaration (ibid., § 127); African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict, Final Declaration (ibid., § 128).
[7] See, e.g., ICJ, Armed Activities on the Territory of the DRC case (Provisional Measures) (ibid., § 131).
[8] ICJ, Application of the Genocide Convention case (Provisional Measures) (ibid., § 130).
[9] See, e.g., the military manuals of Kenya (ibid., § 38), Russian Federation (ibid., § 45) and Switzerland (ibid., § 47) and the legislation of Azerbaijan (ibid., § 174).
[10] UN Security Council, Res. 904 (ibid., § 75).
[11] See, e.g., United Kingdom, Military Court at Essen, The Essen Lynching case, Judgment, 21–22 December 1945, published in WCR, Vol. I, 1946, p. 88.
[12] Hague Convention (II), Article 1; Hague Convention (IV), Article 1; Hague Convention for the Protection of Cultural Property, Article 7(1); Additional Protocol I, Article 80(2); Amended Protocol II to the Convention on Certain Conventional Weapons, Article 14(3).
[13] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 40, § 15), Benin (ibid., § 21), Cameroon (ibid., § 23), Ecuador (ibid., § 30), Germany (ibid., §§ 164–165), Hungary (ibid., § 166), Russian Federation (ibid., § 45), Sweden (ibid., § 171), Switzerland (ibid., § 47), Togo (ibid., § 48) and United States (ibid., §§ 51–52).
[14] 1949 Geneva Conventions, common Article 3, which states, inter alia, that “in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions”.
[15] Hague Convention for the Protection of Cultural Property, Article 19(1); Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 22; Amended Protocol II to the Convention on Certain Conventional Weapons, Article 1(3).
[16] Additional Protocol II, Article 1(1); see also Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 4442..
[17] See, e.g., UN Security Council, Res. 788 (cited in Vol. II, Ch. 40, § 69), Res. 834 (ibid., § 71), Res. 851 (ibid., § 72), Res. 864 (ibid., § 74), Res. 985 and 1001 (ibid., § 76), Res. 1041 and 1059 (ibid., § 78), Res. 1071 (ibid., § 79), Res. 1083 (ibid., § 80), Res. 1193 (ibid., § 81) and Res. 1213 (ibid., § 82); UN Security Council, Statements by the President (ibid., §§ 84, 85, 87, 88 and 89).
[18] See, e.g., UN General Assembly, Res. 2677 (XXV) (ibid., § 91), Res. 2852 (XXVI) (ibid., § 92), Res. 2853 (XXVI) (ibid., § 93), Res. 3032 (XXVII) (ibid., § 94), Res. 3102 (XXVIII) (ibid., § 95), Res. 3319 (XXIX) (ibid., § 96), Res. 3500 (XXX) (ibid., § 97), Res. 32/44 (ibid., § 98), Res. 40/137 (ibid., § 99) and Res. 50/193 (ibid., § 102).
[19] See, e.g., UN Commission on Human Rights, Res. 1991/75 (ibid., § 103) and Res. 1998/70 (ibid., § 106).
[20] Hague Statement on Respect for Humanitarian Principles (ibid., § 7); Memorandum of Understanding on the Application of IHL between Croatia and Socialist Federal Republic of Yugoslavia, § 14 (ibid., § 8); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, § 1 (ibid., § 9).
[21] UN Security Council, Statements by the President (ibid., §§ 84 and 85).
[22] See, e.g., the practice of the ICRC with respect to the conflicts in Afghanistan (ibid., § 138), Angola (ibid., § 141), Bosnia and Herzegovina (ibid., § 137), Somalia (ibid., § 139) and the former Yugoslavia (ibid., § 135).