[Editor’s Note: Just Security and Chatham House are hosting a “mini forum” to debate and discuss Chatham House’s new research paper on “Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism.” This post is the first in a series, which will include contributions from Shaheed Fatima, Ryan Goodman, Miles Jackson, and Alex Moorehead. Stay tuned for more from them and others who may join.]
Complicity is an important topic for international lawyers right now, particularly in the context of armed conflict and counterterrorism. That’s because cooperation between states in these areas has increased in recent years — and with it the risk that a state might be responsible for assisting a breach of international law by another state.
Take the numerous states cooperating with the US in the coalition against the Islamic State in Syria. Or those states providing assistance to Saudi Arabia in its efforts to defeat the Houthi rebels in Yemen (whether through the supply of intelligence, logistics or arms). In what circumstances is an assisting state responsible for breaches of international humanitarian law committed by the receiving state? Are governments under a duty to check in advance the circumstances in which their assistance will be used? And what strategies should states use when deciding whether to provide assistance?
The legal framework governing the assistance of one state to another includes both a general rule under Article 16 of the International Law Commission’s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts and specific rules arising in discrete fields of international law, including international humanitarian law and international human rights law.
Today, Chatham House publishes a paper on “Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism,” available here. It seeks to clarify the law in this area and makes recommendations to states for strategies to avoid complicity in unlawful acts. The paper has a practical focus and does not claim to cover every academic issue in relation to complicity and international law. But it does seek to address the chief legal questions that governments have to deal with in this arena. Just Security and Chatham House are hosting a mini forum to debate and discuss the paper.
In this post I’d like to highlight just a few conclusions in the paper. These concern the issue of the nexus required between the assistance and the unlawful act under Article 16; the mental element required of the assisting state under Article 16; the extent to which an assisting state needs to make enquiries before providing assistance; and the need for assisting states to adopt measures to identify and mitigate risks.
The Nexus Element
Under Article 16, there must be a sufficient nexus between the assistance and the internationally wrongful act. This nexus element has two dimensions: scale and remoteness. On the first, the ILC’s Commentary takes seemingly contradictory positions as to the strength of the relationship between the assistance and the internationally wrongful act (see here). The Chatham House paper concludes that the contribution made by the assisting state to the underlying act must be ‘significant,’ and seeks to clarify what this means in practice, by reference to practical examples drawn from armed conflict and counterterrorism. It argues, for example, that if a state preparing to launch an act of aggression contrary to international law on the use of force has to stop in another state and refuel, and the latter state permits the aggressor state to use its airbase in order to do so, that is likely to be sufficiently significant to meet the threshold.
The second dimension concerns the proximity, or remoteness, of the assistance in relation to the unlawful act. Take aid given for the purposes of capacity-building (such as jeeps supplied for traffic control), which is then diverted by the recipient state for purposes that breach international law (for example, to carry out human rights abuses on rebels elsewhere). In that case, the connection between the assistance and the unlawful act is much more remote. It is doubtful that the provision of assistance that leads to a freeing up of resources by the recipient state to carry out violations in other areas is sufficiently proximate to satisfy the nexus element under Article 16. Otherwise, it would be virtually impossible for one state to assist another in capacity-building unless the recipient state was completely pure in every respect.
The Mental Element: Knowledge or Intent?
A nexus alone is not enough. It is also necessary to show that the assisting state knew of the circumstances of the wrongful act. There is a longstanding debate about whether knowledge or intent is required on the part of the assisting state (see here, and here). This has been fueled by the seeming disconnect between the text of the Article and the ILC’s Commentary (see here).
The Chatham House paper argues that the difference between knowledge and intent is in fact more apparent than real. The basis for this conclusion involves an analysis of what we mean by “knowledge” or “intent” in this context. In relation to knowledge on the part of the assisting state, it is necessary to consider several different questions: (a) what must be known by the state in question? (b) what degree of knowledge is required? (c) at what point in the decision-making process must the assisting state possess the relevant knowledge? and (d) who is supposed to have knowledge for the purposes of assistance provided by a state? The paper concludes that ‘knowledge’, for the purposes of Article 16, means actual or near certain knowledge of specific illegality on the part of the recipient state.
Where the situation is dynamic, the assisting state will need to keep an ongoing watch on its own liability as the facts, and its level of knowledge, develop over time. Where a breach of international law is continuing, the presumption that the assisting state knows about the breach is likely to increase.
As for intent, the ILC provided no definition, but international criminal law may assist by analogy. Article 30(2)(b) of the Rome Statute, in defining intent in relation to the consequences of a crime, describes a situation where a person does not have the desire or will to bring about the consequences of the crime but is aware that those elements will be the almost inevitable outcome of his or her acts or omissions (see also the ICC Appeals Court in Prosecutor v Lubanga). If this is applied to Article 16, knowledge or virtual certainty that the recipient state will use the assistance unlawfully is capable of satisfying the intent element under Article 16, whatever its desire or purpose.
The Chatham House paper also concludes that states that are ‘wilfully blind’ to the unlawful act – that is, states that make a deliberate effort to avoid knowledge of illegality on the part of the recipient state, in the face of credible evidence of present or future illegality – will have the degree of knowledge specified in Article 16.
Pre Assistance Enquiries
Article 16 does not impose a requirement on states to make enquiries before they provide assistance to another state. But some primary rules do. Article 7 of the Arms Trade Treaty, for example, sets out a due diligence standard for exporting states parties, to be undertaken prior to the export of certain arms. The duty on states in Common Article 1 of the Geneva Conventions to ‘respect and ensure respect’ for the Geneva Conventions may also be said to involve a duty of due diligence in this context. The new ICRC Commentary notes that the duty to ensure respect may be particularly strong in the case of a partner in a joint operation. The duty entails the need not just for pre-assistance enquiries, but also for ongoing review where assistance is already being provided.
The question of state assistance to non-state armed groups is becoming increasingly topical. The paper highlights some primary rules of international law that may apply in these situations, and also suggests that similar considerations to those under Article 16 may also apply by analogy.
Strategies to Reduce the Risk of Complicity
Regardless of the legal position, the adoption of strategies to identify and mitigate risk is a necessity for assisting states, who will pay at the least a reputational and political price if their assistance contributes to a recipient state carrying out unlawful acts. The paper makes recommendations for such strategies, including the imposition of conditions, vetting and training recipients of assistance, and monitoring and following up on any risks identified.
Finally, the paper argues for greater transparency by states in this area, both about the factual information surrounding their assistance and about their understanding of the applicable legal framework, particularly where allegations of breaches of international law are concerned.
As litigation or the threat of it increases in this policy space (for example, cases against several European states regarding the assistance of those states to the US armed drone program) and the attention of legislatures to complicity grows (see here), it is in the interests of both governments and the victims of the breaches of international law to have a proper understanding of the law – and how not to run afoul of it.