chapter  5
20 Pages

Ensuring respect for IHL by, and in relation to the conduct of, private actors

WithCatherine Drummond

It is well-accepted that the duty to ensure respect for international humanitarian law (IHL) obliges States to prevent corporate-related IHL violations, but what this actually means in concrete terms is less clear. Much of the doctrinal literature on the rule in Common Article 1 (CA1) to the Geneva Conventions focuses on ensuring respect for IHL by State and non-State parties to conflicts. Private actors are considered either in passing or in studies focusing only on particular types of private actors with an obvious connection to armed conflict. There remains a need to think more generally about how the duty to ensure respect for IHL obliges States to act towards private actors. This chapter takes private actors as the lens through which to explore the nature, scope and content of the obligation to ensure respect for IHL. It argues that in order to comply in good faith with their obligation to ensure respect for IHL, States must actively undertake a scoping exercise to ascertain the extent of their duty as regards private actors in any given situation. It proposes two types of inquiries: a general (activity-based) exercise and a specific (actor-based) exercise. The combination of these two approaches provides a practical framework to guide States to fulfil their duty to ensure respect for IHL by, and in relation to the conduct of, private actors and facilitates the adoption of the appropriate tools with which to do so.