On 24 February 2022, Russia launched full-scale military operations in Ukraine – a blatant act of aggression which has already received widespread condemnation by the international community. As the conflict enters its third week, credible reports of egregious violations of international humanitarian law (‘IHL’) are abundant. So too are allegations of war crimes and crimes against humanity, with ICC Prosecutor Karim Khan announcing on 28 February that his office would be proceeding with an investigation into the situation “as rapidly as possible”. After just two weeks, the documented violations of IHL are innumerable. We have seen reports of attacks against civilians, the use of indiscriminate weapons (including cluster munitions), the destruction of objects indispensable to survival, and many more. From the perspective of IHL-compliance, it is hard to imagine a situation more dire.
Of course, the Russian Federation entails international responsibility for any violations of the Geneva Conventions and their Additional Protocols committed in the conduct of hostilities. That said, all states bear a duty to ensure compliance with the Conventions, regardless of whether they contributed to, or were directly affected by the violation. This principle is commonly termed ‘third state responsibility’, and is embodied in Common Article 1 to the Geneva Conventions. As observed by the International Committee of the Red Cross (‘ICRC’), “the interests protected by the [Geneva] Conventions are of such fundamental importance to the human person that every High Contracting Party has a legal interest in their observance, wherever a conflict may take place and whoever its victims may be”.
Common Article 1 consists of two broad components: the negative duty to refrain from assisting encouraging, aiding, or assisting IHL violations; and the positive right to adopt measures to bring violations to an end. As argued below, both are triggered in relation to the Russian invasion, and both require third states to critically evaluate their responses (or lack thereof) against the legal standards imposed by Common Article 1.
Common Article 1
Article 1
The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.
Common Article 1 has been interpreted as comprising both positive and negative obligations for third states. Under the negative obligation, High Contracting Parties must refrain from encouraging, aiding, or assisting violations of the Conventions. In addition, this obligation also demands that states refrain from recognising, or aiding and assisting the maintenance of, an unlawful situation arising from a violation. The ICRC has elaborated that this obligation may be violated in a situation where a state, which is not itself a party to an armed conflict, nonetheless provides financial support, weapons, or equipment to a party to the conflict, in the knowledge that such support will be used to commit violations of the Conventions.
As acknowledged by the ICRC, “[t]here is disagreement as to the legal nature of the positive component of the duty to ensure respect by others because the content of the obligation is not clearly defined and its concretisation to a large extent left to the High Contracting Parties”. However, the ICRC has observed that states are duty-bound to do everything within their power to ensure compliance with the Conventions by Parties to a conflict. This echoed the position of the ICJ in the Wall Advisory Opinion, wherein it found that Common Article 1 provides that “every State party to [the Fourth Geneva] Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with”. Crucially, as elaborated below, this encompasses the specific obligation to hold accountable the actors responsible for violations of the Conventions.
What is clear is that, at a minimum, Common Article 1 grants third states the right to adopt certain measures to induce compliance with the Conventions by parties to an armed conflict. Moreover, the moral case for states to exercise their right to take positive measures to induce compliance in the present context is compelling.
In the context of the Russian military operations in Ukraine – seemingly advanced in complete disregard of the fundamental protections provided for in the Geneva Conventions and their Additional Protocols – both the negative and positive components of Common Article 1 are engaged. In fact, Common Article 1 provides a useful lens through which to observe and evaluate the action and inaction of third states in response to the violations of IHL committed during the hostilities.
The Negative Dimension
The following may provide a useful practical application of the negative dimension. At the outset of the invasion, data swiftly emerged demonstrating the alarming levels of financial support provided to Russia through third state oil exports. Given the plethora of credible evidence that Russia is currently financing a war of aggression against Ukraine in which grave violations of IHL have become routine, such exports appear to trigger the third state responsibility of the beneficiaries. In this respect, Germany’s decision to halt the Nord Stream 2 gas pipeline project, which would have doubled the flow of Russian gas into Germany, ought to be viewed as a measure which has increased compliance with the negative dimension of Common Article 1. Nonetheless, as pressure mounts to cease all Russian oil imports, some states, including Turkey and China, remain committed to purchasing oil from Russia, in the knowledge that Russia is concurrently financing a war of aggression in Ukraine.
Such conduct may amount to a violation of Common Article 1, provided the requisite knowledge can be inferred. According to the ICRC, it is not necessary that a third state intended to encourage, aid, or assist violations of the Conventions through the provision of such financial support. Rather, “[f]inancial, material, or other support in the knowledge that such support will be used to commit violations of humanitarian law” would violate Common Article 1.
As another example, voting against the UN General Assembly Resolution condemning the Russian invasion (as did Belarus, North Korea, Eritrea, and Syria), may amount to a violation of Common Article 1. Although the Resolution is not legally binding, voting against it may be interpreted as recognising the Russian invasion as legitimate, and aiding or assisting in the maintenance of the IHL violations which will invariably continue to occur. The negative obligation under Common Article 1 requires that support of any kind which may further facilitate the Russian invasion – whether financial, material, or political – must be withheld.
The Positive Dimension
Compliance with the positive dimension of Common Article 1 is more difficult to evaluate. Even if legally binding, the ICRC has noted that this obligation is one of means, meaning its precise scope varies depending on the gravity of the violations, the means available to the third state, and the degree of influence it exercises over the responsible actor. The starting point for states when assessing measures taken in furtherance of this positive component ought to be paragraph 214 of the ICRC’s 2020 Commentary to the Third Geneva Convention, which provides a non-exhaustive list of applicable measures such as exerting diplomatic pressure, or requesting inquiries into IHL violations.
In the event that the positive dimension of Common Article 1 merely grants the right to invoke positive measures to induce compliance, the extent to which a state should feel morally (if not legally) obliged to adopt a particular measure will depend on its individual means and scope of influence. In this respect, for instance, states with closer trade links or diplomatic ties to Russia bear greater responsibility to sever those trade links, and exert diplomatic pressure, to induce compliance with IHL.
Many third states have taken several important steps in furtherance of this positive obligation. The ICRC has noted that issuing public denunciations of acts contravening IHL falls within the scope of the positive component. In this regard, the swift condemnation of the Russian invasion on the part of the UN General Assembly, the European Union (‘EU’), and the Parliamentary Assembly of the Council of Europe is commendable.
The ICRC has also identified that actively supporting efforts to hold perpetrators of serious violations of IHL accountable is another measure that States should adopt in furtherance of the positive dimension of Common Article 1. In this regard, it is paramount that the ICC investigation, as well as investigations initiated at the national level under the principle of universal jurisdiction, receive the full backing of third states. In unprecedented fashion, on 2 March, the ICC Prosecutor received referrals on the situation in Ukraine by 39 states under Article 14 of the Rome State. These referrals will “significantly expediate” the investigative process, in furtherance of the positive obligation to take steps to hold perpetrators of IHL violations accountable under Common Article 1. It is imperative that these States now commit to assisting the ICC with the funds required to investigate the situation. In terms of universal jurisdiction, Germany, Poland, Lithuania and Spain have already commenced investigations into the situation in Ukraine, with other states likely to follow suit in the coming weeks.
Overall, although many positive measures have been adopted by third states in furtherance of the positive dimension of Common Article 1, more must be done. Even if, as Judge Kooijmans remarked, it is hard to see what kind of positive action may be expected of states in furtherance of this positive component beyond ‘diplomatic demarchés’, further diplomatic pressure can be applied in the present case. The Ukrainian ambassador to Australia, for example, has called upon the Australian government to expel the Russian ambassador, publicly stating that he is “not in a position to be diplomatically polite”. Common Article 1 calls upon states to critically evaluate their diplomatic avenues of influence over Russia and determine the most effective means through which to exert pressure. Unless third states are availing themselves of such diplomatic lines of communication to persuade Russia to stop the invasion, or to induce compliance with IHL, expulsion of diplomats may be the most effective available measure under the positive component of Common Article 1. Again, even if not legally binding, the moral argument that states should adopt such measures is persuasive.
Further steps can also be taken regarding trade and other economic sanctions. Switzerland, for instance, was initially praised for adopting banking and trade sanctions against Russia alongside the EU. Although ostensibly an impactful measure, it quickly emerged that trade in Russian commodities (including oil) would be allowed to proceed unencumbered. Critically, according to Swiss government estimates, around 80 percent of all Russian commodities are traded in Switzerland, placing it in a unique position of influence. As such, there is a strong case to be made that Switzerland should be utilising this influence to far greater effect. Further sanctions could be imposed or, at the very least, trade could be made conditional on Russia’s compliance with IHL in the context of its military operations in Ukraine.
These are just a few concrete examples, and many more could have been cited, but they are demonstrative of how the positive component of Common Article 1 should operate in practice. States should critically evaluate their means and position of influence with respect to Russian interests, before determining whether more can be done to exert pressure to induce compliance with IHL. Third states who have not yet exercised their right to take positive steps ought to implement the most impactful measures at their disposal.
Conclusion
Discussion on the various activities undertaken (or not undertaken) by third states in response to the IHL violations committed by Russian forces in the conduct of its war of aggression against Ukraine is rarely framed legally. That said, international law is far from silent on the issue. Common Article 1 to the Geneva Conventions demands that all States refrain from lending any form of support to Russia in the knowledge that it will be used to commit violations of IHL. It further provides, at a minimum, a basis on which third states may adopt positive measures to induce compliance with the Geneva Conventions by all sides to the conflict. Common Article 1 ought to underpin any legal analysis of the action and inaction of the international community in response to the Russian invasion.
Common Article 1 requires introspection on the part of third states, particularly with regard to the positive dimension. States should critically evaluate their means and position of influence, before asking themselves whether more can be done to exert pressure over Russia and induce respect for the Geneva Conventions and their Additional Protocols in the context of its war of aggression against Ukraine. The international community as a whole has an interest in seeing IHL violations committed in the context of the Russian invasion brought to an immediate end. On a practical level, full compliance with the negative component of Common Article 1 by all states – including but not limited to the ways identified above – as well as the adoption of compliance-inducing measures under the positive dimension, would bring this shared goal within closer reach.