3. The Post-1945 Conventions: General

After two world wars the need for some penal and other mechanisms for securing compliance with the laws of war was self-evident. The major treaties in the field since 1945, particularly the four 1949 Geneva Conventions, contain an unprecedented range of provisions about dissemination, instruction of armed forces, humanitarian and monitoring tasks during armed conflicts, and repressing breaches These provisions, discussed below, did not follow a single standard form, and contained many innovations.

A general trend in the post-1945 conventions has been to try to get beyond the previous unsatisfactory situation in which it was assumed that implementation was fundamentally an internal matter for states. The Nuremberg and Tokyo tribunals had self-evidently taken a bold step beyond the idea that states could be relied on to punish their own nationals. In several ways, itemized in the following sections, the Geneva Conventions and other laws of war agreements advanced the concept of international involvement in implementation - especially through proposals regarding fact-finding and universal jurisdiction for war crimes. Three agreements since 1945 have specifically provided for a United Nations role in securing implementation of their terms and in dealing with violations.

Common Article 1 of the four 1949 Geneva Conventions is often, and increasingly, viewed as providing a basis for states to involve themselves in ensuring implementation of the conventions not merely within their own territories and areas of operations, but also more generally. It says: "The High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances". The words "and ensure respect", which had not appeared in previous conventions, have been widely seen as signifying that states, whether or not involved in a particular conflict, have a responsibility to help ensure implementation of the conventions wherever and whenever they are being violated. Such an interpretation of common Article 1 was already evident in Jean commentary, in which he said, in expansive terms going beyond the narrow confines of legal analysis: "It follows [..] that in the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention". This view has prevailed in much subsequent analysis and advocacy, including at the ICRC.

This interpretation of Article 1 does not appear to have a basis in the negotiating history of the 1949 Geneva Conventions. In the various meetings at Stockholm and Geneva, the words "to ensure respect" had another meaning: to ensure that the whole population of a country which was party to the conventions would respect the law in all circumstances, even perhaps in the case of civil war. There appears to be little or nothing in the records of the 1949 Diplomatic Conference to suggest an awareness on the part of government delegates, or indeed ICRC participants, that the phrase "to ensure respect" implied anything beyond this.

Whatever the original intention behind it, the interpretation of common Article 1 as implying a duty to promote implementation generally has helped to bring the question of implementation of the laws of war more centrally into the discourse of states and the activities of international organizations. It played some part in the EC Dublin summit Declaration on the Middle East of 26 June 1990. States are indeed at liberty to interpret, or reinterpret, their obligations under Article 1 in this way; and it may be especially appropriate to do so in view of developments since 1949, including the world-wide concern over laws of war issues. Yet states need to be aware that in so doing they are entering difficult territory, probably not envisaged by the negotiators of the 1949 conventions, and containing pitfalls for the unwary.