Q3: Common Article 1 to the four Geneva Conventions 1949
Scope and content of common Article 1
common Article 1 provides one of the core obligations of the Geneva Conventions, specifically
regarding the enforcement of IHL:
The High Contracting Parties undertake to respect and to ensure respect for the present
Convention in all circumstances.
common Article 1 contains both an obligation to respect and an obligation to ensure respect.
The first part of this obligation, the obligation to respect in all circumstances, is uncontentious,
and is derived directly from the two 1929 Geneva Conventions: “The provisions of the present
Convention shall be respect by the High Contracting Parties in all circumstances”. It imposes
an obligation that a State must do everything it can to guarantee that its own organs abide by
the rules in question.
In contrast the obligation to ensure respect goes a step further. This obligation is now subject to
two competing interpretations.
One interpretation holds that States are not only required to ensure that IHL is respected not
only by their own organs and subjects within their respective jurisdictions, but universally by
all. This would require that third States not involved in a given armed conflict have a duty to
take measures in order to ensure compliance with the Geneva conventions.
An alternate and far narrower interpretation holds that the obligation to ensure respect applies
only in respect to the State’s own population and groups under the effective control of the state.
In accordance with this view, there is no legal obligation to ensure respect for IHL by other
States or by foreign non-State actors, only a moral obligation to do so.
In diplomatic circles, common Article 1 has come to be seen by many as implying a universal
obligation for States and international organizations (be they regional or universal) to ensure
that this body of law is implemented wherever a humanitarian problem arises. The issue of
implementation of international humanitarian law has thus become a more central feature in the
activities of States and international organizations.
Combatant: (Article 43 of additional protocol 1 defines combatant)
The term “combatant” comprises every member of the armed forces, with the exception of
medical and religious personnel.
Combatants are persons who may take a direct part in hostilities, i.e., participate in the use
of a weapon or a weapon-system in an indispensable function.
persons who are recognized as ‘combatants’ are entitled to be treated as POW upon
capture by enemy.
Prisoners of war
POWs are usually members of the armed forces of one of the parties to a conflict who fall into
the hands of the adverse party. The third 1949 Geneva Convention also classifies other
categories of persons who have the right to POW status or may be treated as POWs.
Any combatant who falls into the power of an adverse Party while not engaged in an attack or
in a military operation preparatory to an attack shall not forfeit his rights to be a combatant
and a prisoner of war by virtue of his prior activities.
General Protection of POW
The detaining authority or power is under an obligation to ensure the fulfillment of the rights of
POWs strictly in accordance with IHL. General Rights of POWs are as under:
1. Protection and Proper Transport
The detaining power must transfer POWs from the battle area as swiftly, safely, and
humanely as possible to a safe camp and not subject to attack during warfare.
2. Protection against act of violence
POWs must be treated humanely in all circumstances.
They are protected against any act of violence, as well as against intimidation, insults,
and public curiosity.
3. Clothing, Food and Health
The detaining power must ensure that POWs have food, safe drinking water, clothing and
medical attention during a transfer from the battle area to safe camp and in a safe camp.
4. Religious Rights, Recreational and Intellectual Activities
Camp officials must allow POWs to attend services of their faith and practice religion
otherwise. Camps must allow the right to exercise, including the right to play sports and
games and the right to participate in intellectual and educational activities.
5. Fair Trial
POWs are entitled to a fair trial, including the right to counsel, advance knowledge of the
charges, services of a competent interpreter, and ample time for the preparation of their
defense
6. Right to return their own country
parties to the conflict are bound to send back POW to their own country seriously
wounded and sick prisoners of war after having cared for them until they are fit to travel
Their detention is not a form of punishment, but only aims to prevent further
participation in the conflict. They must be released and repatriated without delay after
the end of hostilities.
