국제인도법 준수 보장 의무의 범위 – 1949년 제네바 4개협약 공통 제1조에 대한 해석론을 중심으로 –

One of the key challenges facing the international community today is ensuring that parties to armed conflicts comply with international humanitarian law. Strict adherence to existing international humanitarian law compliance mechanisms can significantly improve the treatment of those affected by war. The effectiveness of international humanitarian law would be further enhanced if it imposed obligations on third parties, which are not directly involved in the conflict, to take affirmative action in the event of armed conflict. In this regard, Common Article 1 of the 1949 Geneva Conventions states that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” This establishes the so-called “obligation to respect and ensure respect for international humanitarian law,” which has long been debated in the academic community, particularly regarding how the ‘obligation to ensure respect’ should be interpreted. This debate was rekindled when the International Committee of the Red Cross updated its commentary on the 1949 Geneva Conventions, taking a broader interpretation of the obligation to ensure respect to reflect developments in subsequent practice. This interpretation can be quite controversial, as it could potentially impose a wide range of obligations on states when they participate in multinational operations alongside other states. Since 2016, some states have outright rejected the ICRC's interpretation of Common Article 1, which has reignited debate in the academic community about the scope of external obligations under this article. The interpretation of Common Article 1 is primarily concerned with the ‘obligation to ensure respect’, which is ultimately a question of interpretation of the treaty in question, and therefore the general rules of treaty interpretation under Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties require the meaning of Common Article 1 to be established. Despite the interpretation under Article 31, the meaning of Common Article 1 of the Four Geneva Conventions of 1949 remains vague and unclear, but applying the supplementary means of interpretation under Article 32, it is reasonable to interpret Common Article 1 as including an obligation to ensure external respect. Nevertheless, the specific scope of the obligation to ensure external respect under Common Article 1 remains unclear. Further development through subsequent practice is needed, particularly with regard to the scope of obligations imposed on partner states in the context of multinational operations.