States have a responsibility to create an environment conducive to all States’ capacity to build respect for the laws of armed conflict (also known as international humanitarian law or IHL). This is just one expression of the obligation found in Common Article 1 to the Geneva Conventions (and Additional Protocol I and III thereto), to respect and ensure respect for IHL. As is explored further in the recently published volume Ensuring Respect for International Humanitarian Law, there are a number of different ways in which States fulfil this obligation, and challenge it, in their conduct with regard to other States and other entities. The obligation to respect and to ensure respect for IHL is often met through a State carrying out its activities in compliance with other obligations in international law, rather than being explicitly considered and cited. That said, some recent actions of both New Zealand and Australia have given further impetus to the argument that States should clearly check their actions against Common Article 1 when making decisions about their engagement with other States or private actors.
In January 2021, it was reported that Australia had ‘approved at least 14 permits for the export of military goods to Saudi Arabia and the United Arab Emirates’ in the preceding 18 month period. Given the humanitarian situation in Yemen caused by the armed conflict, this is not the first time in recent years that reports of Australian weapons being sold to the United Arab Emirates Armed Forces has attracted attention. The reports have also questioned Australia’s sale of military goods to Turkey because of the humanitarian suffering in Syria.
Preventing the transfer of weapons to actors who may use them to commit serious violations of IHL is one of the key roles the obligation to ensure respect for IHL can play. The sale of weapons to parties to the conflicts in Yemen and Syria has particularly brought this topic to the attention of the media in a number of jurisdictions, including notably in the United Kingdom where a civil society organisation brought successful judicial review proceedings against the government concerning the transfer of arms to Saudi Arabia. By virtue of their being a party to the Arms Trade Treaty, some States have a specific obligation under Article 7 of that Treaty not to transfer weapons covered by the treaty where there is an overriding risk of them being used to commit or facilitate a serious violation of IHL. However, in addition to this specific obligation, the general obligation found in Common Article 1 to the Geneva Conventions, to ensure respect for IHL would require States not to allow weapons (or component parts) produced by them to end up in the hands of those who would use them in violation of IHL.
That Australia needs to give thought to these issues is acknowledged by the Government. In October 2019, then Defence Minister, Linda Reynolds, advised that she had asked for ‘a pause’ and for ‘Defence to consult… before any new or pending export permits to Turkey are considered’. This was required in light of the actions of the Government of Turkey in Northern Syria which, she noted, were ‘causing great civilian suffering’ and further could ‘significantly undermine the huge gains made… including [by] Australia’ in the conflict in that region. However, despite assurances by the Department of Defence that the process of export applications takes into account ‘international obligations’ (which one assumes includes Australia’s obligations under the Arms Trade Treaty), as well as suggestions that the export permits issued may not have actually been for items with a military purpose, it is not clear that Common Article 1 is a specific reference point for the Department of Defence.
A related issue concerning the Saudi-led coalition’s hostilities in Yemen emerged in New Zealand in February 2021. It was reported that a gas turbine business unit of Air New Zealand, in which the New Zealand Government is a 52% shareholder, had been servicing Royal Saudi Navy vessels with parts and engine repairs through a third party contract. Political and civil society commentary initially queried whether New Zealand should be considered complicit by aiding or assisting in war crimes and raised concerns about corporate compliance with human rights. Air New Zealand officials quickly apologised and stopped work, setting out improved steps for ‘ethical considerations’ in future contract reviews. Prime Minister Jacinda Ardern described the contract as ‘not passing the sniff test’. However, the debate and a Ministry of Foreign Affairs and Trade enquiry quickly turned to the domestic issue of whether the Air New Zealand business unit had obtained government authorisations for the contract or had breached export control orders. Despite it being highly relevant, the legal duty to respect and ensure respect for IHL, an undertaking implemented through New Zealand’s Geneva Conventions Act 1958, was not publicly discussed.
In one sense, Prime Minister Jacinda Ardern’s comment that the Saudi contract did not pass the ‘sniff test’ gives too little weight to what is an international legal obligation. In another sense, given the contested scope of the Common Article 1 obligation and, therefore, the limits to its practical enforceability, the duty is in practice rendered rather aspirational. It can really come down to a ‘sniff test’. Going ahead with the provision of goods or services that fails the sniff test precisely evidences insufficient diligence having been taken to purposefully check the actions against the legal duty to ensure respect for IHL.
Ongoing monitoring and assessment of the situation when a state is providing military assistance is key because the conduct of hostilities is dynamic and the situation – including the respect or not for IHL – can change. Once the assisting State – Australia or New Zealand in these cases – becomes aware that the receiving State or actor may be violating IHL in its military activities, the assisting State may be required to reconsider its provision of assistance, limit that assistance or obtain certain assurances, or halt the assistance entirely. Given that in the case of Yemen, the involvement of the Saudi-led coalition in the commission of IHL violations is well-documented, one of the most straightforward ways to take positive action and pass the right message of disapproval would be not to become involved in any actions that could support the operations in the first place.
Both the Australian and New Zealand examples suggest that diligence in IHL compliance, including ensuring respect for IHL, can best be achieved with a whole of government approach. This necessarily includes business relationships, and an understanding that concern for humanitarian considerations during armed conflict is not only a matter for the defence forces or humanitarian organisations working in conflict zones. In both these recent Australian and New Zealand situations, checking proposed actions against Common Article 1 was both relevant and legally required.
In this blog post the authors have sought to highlight some recent case examples where the obligation to ensure respect for IHL is at play for Australia and New Zealand. The authors will be joined by fellow authors of Ensuring Respect for International Humanitarian Law to talk more about these topics during a panel of the forthcoming 2021 ANZSIL Conference.
Dr Marnie Lloydd is a Lecturer at Te Herenga Waka/Victoria University of Wellington, New Zealand. She researches and teaches in the areas of the law of armed conflict, counterterrorism, forced displacement, and humanitarian law and policy. She previously worked as a Delegate and Legal Advisor with the International Committee of the Red Cross and as an independent legal consultant with the UNHCR. Marnie is a member of New Zealand's National IHL Committee and serves on the Board of Experts of the Asia-Pacific Journal of International Humanitarian Law.
Dr Eve Massingham is a Senior Research Fellow with the School of Law, The University of Queensland. Eve's current research focuses on the diverse ways in which the law constrains or enables autonomous functions of military platforms, systems and weapons. She is the co-editor of Ensuring Respect for International Humanitarian Law (Routledge, 2020) and she has published a number of book chapters and journal articles in the fields of international humanitarian law and international law and the use of force. Prior to joining the University of Queensland, Eve spent most of her career with the International Red Cross and Red Cross Movement.