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 series includes contributions from Harriet Moynihan, Ryan Goodman, Miles Jackson, and Alex Moorehead. Stay tuned for more from them and others who may join.
Chatham House’s Harriet Moynihan has published a valuable and insightful research paper, “Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism.” The Paper prompts us to consider a central issue in international affairs: the pursuit of “enforceable accountability” of States—where they aid or assist others in the commission of an internationally wrongful act. One of the most valuable parts of the Paper is to point us toward norms in international human rights law (IHRL) which determine whether a State can provide assistance, for example, to a foreign military force. The Paper also considers limitations on another body of legal rules that apply generically as background rules norms when States provide assistance to another State—Article 16 of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts. In light of the limitations of the latter, I suggest that the pursuit of enforceable accountability of States is far more likely to be practically advanced by using the analogous primary norms in IHRL.
To provide a concrete illustration: one example of such an IHRL norm—which combines a substantive obligation/duty with the practical scenario of assisting another State—is the non-refoulement obligation which has been read into Article 3 (prohibition of torture) of the European Convention on Human Rights (ECHR). This provision imposes an obligation on States not to remove/deport/extradite an individual to a State where they face a real risk of ill-treatment contrary to Article 3.
Whilst there are deficiencies in the substantive reach and application of both Article 16 and IHRL norms, the latter provides a more reliable overall framework through which enforceable accountability may be pursued. What follows are some of the principal reasons for reaching this conclusion. I reason by reference to the position of the United Kingdom and the application of the ECHR.
First, the treaty-based provenance of IHRL norms means that they constitute a complete code, in which a substantive human right may be breached by the provision of assistance to another State and in which the right may be readily enforced by an individual/other non-State entity before a domestic court or a supranational body. Thus the ECHR, as transposed into English law by the Human Rights Act 1998, enables an individual/other non-State entity to pursue a claim against the UK for assisting another State before domestic courts and, ultimately, before the European Court of Human Rights. By contrast, Article 16 is a roving rule, of general application. It does not come packaged together with substantive rights or enforcement mechanisms. It is true that in the Bosnian Genocide case (2007) the ICJ described it as a rule of customary international law (CIL) but the application of CIL rules as part of domestic law is not without complexity. In the UK, for example, a claimant could only seek to rely on Article 16 as a rule of CIL if she could show that Article 16 did not conflict with, or undermine extant legislation and that it was otherwise permissible for it to be relied upon as a part of common law (e.g. by reference to the scope of constitutional constraints on judicial competence).
Secondly, because IHRL norms may be, and are, routinely tested in litigation there is a body of case-law which develops and elucidates their content in practical contexts. This means that there is an identifiable resource, emanating from recognized authorities (domestic courts/supranational bodies) to which regard may be had in the event of ambiguity. By contrast, there is comparatively little case-law that interprets and applies Article 16. This is particularly important given the ambiguities in the scope and application of Article 16. Although the Chatham House Paper undoubtedly achieves its purpose—of clearly stating the law on aiding and assisting, with particular regard to its application in situations of armed conflict and counter terrorism—that also means that it shines a light on these thorny interpretive issues: e.g. whether Article 16 extends to omissions (para 20); the lack of a clearly articulated nexus threshold between the assistance and the wrongful act (paras 21-24) and, most critically, the ongoing debate over whether the requisite mental element is knowledge or intention (and how these concepts should be defined) or some combination thereof (paras 30-83).
Thirdly, a claim against the UK alleging that, by assisting another State, it had violated an ECHR right would not require the English court to concretely determine the lawfulness of the other State’s conduct. By contrast, Article 16 would necessarily require a court to decide whether the other State was responsible for an internationally wrongful act before it could decide whether the UK was responsible for assisting it. English courts are likely to resist this because of the obvious political sensitivities inherent in any such adjudication – and even though there are exceptions to the foreign act of state doctrine, which precludes English courts from adjudicating on the lawfulness of acts of a foreign State. From a justiciability perspective, therefore, ECHR norms are more attractive litigation tools than Article 16.
Image: Strasbourg- European Court of Human Rights via Cherry X, Wiki Commons