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, Shaheed Fatima QCRyan Goodman, and Miles Jackson. Stay tuned for more from them and others who may join.

Chatham House’s recent research paper by Harriet Moynihan is an invaluable guide to the complex area of state complicity. The paper, “Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism,” clearly explains the law and sets out a range of concrete and practical recommendations for governments to take to reduce the risk of complicity in international law violations.

A number of these recommendations are directed at how governments can make forward-looking assessments to determine if their aid and assistance to a foreign State might make them complicit in unlawful acts. This is in contrast to investigations of alleged wrongdoing, which are by nature backward-looking, examining conduct that has already occurred. In what follows I explore the mutually reinforcing relationship between the duty to investigate and a State’s ongoing assessment of a recipient’s actions. I also briefly clarify a point made in the Chatham House paper regarding how and to what extent an assisting State’s forward-looking assessment takes into account the recipient State’s interpretations of relevant legal obligations.

Assessing Legality and the Duty to Investigate

To be complicit, an assisting State must have knowledge of specific and future illegality by the recipient state. However, the paper explains that “Article 16 [of the ILC Articles on Responsibility of States for Internationally Wrongful Acts] does not impose a duty on assisting states to make enquiries before providing assistance,” although this gap may be filled by international human rights and humanitarian law in some circumstances.

At the same time, governments must not be willfully blind in the face of “credible evidence of present or future illegality,” and, in a dynamic situation “the responsibility of the assisting state may evolve as the facts, and its level of knowledge, develop.” In such situations, there should be a feedback loop whereby ex post facto investigations of alleged past violations, combined with information from other sources, plug into ongoing ex ante assessments of the potential consequences of future assistance.

States are increasingly engaged in providing a vast array of support to other governments in military coalitions. US assistance to Saudi Arabia in the armed conflict in Yemen, for example, includes arms, intelligence (including possibly in relation to the selection of targets), refueling, other logistical and operational support, technical advice with secondment of advisers (at least some were withdrawn in August 2016), and training and capacity-building support.

A government providing assistance on such a scale, across such a range of areas and involving numerous personnel and varied expertise, will often not immediately know the extent of its own involvement in an alleged violation. It may take some disentangling to figure out whether a government is potentially implicated in a violation, and whether its personnel may be complicit in war crimes. As Scott Paul has noted, it is difficult and problematic to try to neatly separate out different kinds of assistance in such circumstances.

This is where an ex post facto duty to investigate, as a procedural obligation deriving from a State’s obligations under international humanitarian and human rights law, including as a matter of customary law, is relevant. Where support is provided across so many fronts, this duty will at least require a State to examine the extent of its potential complicity, or even joint responsibility, in most instances where there are credible allegations of violations by coalition partners. Such investigations may be more far-reaching precisely because of the challenges involved in cataloguing the different forms of assistance and understanding how they relate to the incident in question. These investigations are focused on the assisting State’s conduct – for example, examining specifically what support it provided to an attack in which numerous civilians were allegedly killed – but an assessment of the conduct of the recipient State in the particular case will be an indispensable part of such an investigation.

Results of investigations by the assisting State may be the best “credible evidence of present or future illegality.” Those results should be part of a reinforcing feedback loop into the difficult assessment of future illegality, particularly where there is an ongoing program of assistance. The process of investigation will allow a government to make a better assessment of where and how its assistance is being used, how it may potentially contribute to violations, and what mitigation measures it can take as an assisting State.

Ongoing assessments are also good policy. The paper highlights a number of useful recommendations in this regard, urging governments to keep regular updates of the country profile, taking into account reports of civil society and establishing an effective reporting and monitoring system. States may also be gathering information in all sorts of different ways, including human and signals intelligence, and this should all feed into the knowledge a State has each time it is assessing its assistance to another State. A number of States already appear to be undertaking such actions, either as a matter of law or policy. For example, in a recent government report, the UK stated that “since October 2015, the Foreign Secretary has received regular updates specifically addressing IHL [international humanitarian law]” in relation to the situation in Yemen.

A challenge will be ensuring this works procedurally, making sure that officials and departments have the information at their disposal to make proper assessments and to cut off assistance if necessary. It is important to recall that it is no excuse to say the relevant department or official did not know of a risk when another branch of government did have that knowledge. As the paper clarifies, “if a person or group whose acts are legally attributable to the state has relevant knowledge, the state is fixed with that knowledge.”

Assessing Legality and Interpretations of Law by Recipient States

Separately, the paper offers much-needed explanations of what States need to know to be complicit. This guidance will be useful to governments and practitioners, but in one respect I wish to offer a clarification to avoid any implication that outlier interpretations of international law by recipient States can serve to undermine accountability of assisting States for complicity. In paragraph 37(iii), the paper states:

“Even where the law and the facts are established, it will be necessary for the assisting state to consider how the recipient state will interpret and apply the relevant law”

There is a link here to the fourth part of the test, which already limits complicity to acts that are wrongful for both the assisting and recipient State. I merely wish to clarify a possible misconception that may arise if this is read as requiring assisting States to weigh too heavily interpretations of law by recipient States, which could potentially allow support for violations in situations that would otherwise clearly cross the threshold.

If consideration of the recipient State’s interpretation is paramount, it could lead to absurd consequences – a State assisting the US circa 2003-2004 in the CIA secret detention and rendition program would not be complicit based on US interpretations of law at that time even where all other conditions are met. An act does not stop being wrongful just because a particular State applies a broader or narrower interpretation to a specific rule (and this may also be a problem because of the assisting State’s legal interpretation). That may best be viewed as evidence of a violation or a propensity to violate relevant to an assessment of its future actions. Accordingly, the assisted State’s interpretation of the law should not be given too much weight. A better test would be the assessment against customary law, or generally-accepted interpretations of an applicable treaty rule.