The policies of the incoming Trump Administration may spell legal trouble for cooperation between the United States and its allies in important areas of national security. One issue that may arise is the ability of US allies to support any Trump administration policy that violates international law. US allies will need to consider, in addition to other pragmatic and moral concerns, how international law prohibits aiding and assisting such policies. In turn, the Trump administration will need to consider the costs of driving away foreign government support from the United States and its national security objectives. In these respects, Chatham House’s excellent research paper—“Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism”—could not come at a more opportune moment for contemplating such scenarios.

What U.S. policies and what potential allied support might be implicated in this space? If the Trump administration engages in discriminatory forms of surveillance or immigration control, that might implicate future intelligence sharing from other governments. If the Trump administration collaborates with Russian or Syrian forces in combat activities that run afoul of the law of armed conflict, that might affect the ability of allies to provide airbases and other material support for US military operations. If the Trump administration engages in inhumane treatment of detainees, that might drive away allies’ willingness to turn over detainees or carry some of the burdens of detention operations. If the Trump administration sets out on a path to strike Iran on the basis of an internationally repudiated theory of preventive self-defense, that might implicate foreign military assistance to the United States. The list goes on.

In some of these cases, foreign governments might hide behind a plausible legal claim that they are required to cut their assistance to, or partnership with, the United States. In other cases, these governments may be genuinely concerned about the risk of violating their own international legal obligations.

But is there a valid legal claim that foreign governments would violate their own international legal obligations if they know that their assistance enables the Trump administration to carry out such actions but they do not have any desire or purpose to facilitate such actions? That question involves one of the most vexing issues in this area of international law. Chatham House’s research paper provides a set of important answers.

In three different respects, the Chatham House report suggests that an assisting State does not need to desire or share the purpose of facilitating a recipient State’s unlawful conduct to violate the international legal obligation to refrain from such assistance. According to the report:

  1. Even if the general legal standard requires the assisting State to “intend” to facilitate an internationally wrongful act, that intention can be satisfied when the assisting State “knows or is virtually certain that [the recipient State] will act unlawfully in the ordinary course of events.” (paras 65-76)
  2. States “should not be able to deny their responsibility for assistance in situations in which internationally wrongful acts are manifestly being committed.” Note: this standard may be most relevant when a recipient State’s policy involves ongoing systematic violations of international law. (para 63)
  3. Regardless of the assisting State’s intent, it may be legally precluded from providing assistance to another State that has created a situation through violations of the most fundamental universal legal norms such as the prohibition on torture, war crimes, or wars of aggression. (paras 79-83)

A few additional observations are worth mentioning.

First, in many respects the Chatham House report is fairly conservative in its approach. For example, the standard in #1 is derived from a high threshold of the mental element of war crimes in the Statute for the International Criminal Court. Even that standard in the ICC Statute has been contentious. The ICC Prosecutor and some ICC Trial Chambers had articulated a lower standard well before the Appeals Chamber overruled them. More importantly, experts generally regard the ICC standard as limited to that Court’s jurisdiction as a matter of treaty law, and not reflective of customary international law. And, indeed, an important law review article by Brian Finucane, which Oona Hathaway and I discussed in an earlier Just Security post, suggests that the appropriate standard for state responsibility may be much lower than the Rome Statute’s threshold (he plausibly suggests the customary international law standard of recklessness may apply).

Second, it is important to keep in mind that a close analog to state responsibility for assistance is aiding and abetting liability under international criminal law. And under customary international law, officials can be held criminally liable for aiding and abetting an international crime (e.g., a war crime by a foreign State) even if they do not have a desire or purpose to facilitate the criminal act. As Miles Jackson explained in his post in this mini forum, it would be surprising if the state responsibility standard were more restrictive than the international criminal law standard.

Third, government legal advisors will need to distinguish between what the elements are for state responsibility as an objective matter versus as an evidentiary matter. For example, a court may omit the element of “desire to facilitate the wrongful conduct” as an evidentiary matter and infer such intent from the assisting State’s knowledge of certain conditions. That feature of judicial review should inform the legal risk analysis for a government. However, in internal deliberations officials may rightfully determine that their government has no such desire and thus, as an objective matter, their government is not violating its international law obligations. One has to read closely different passages of the Chatham House paper, as one would with other interpretations of this area of law, to determine which of these frameworks are at work in the analysis.

From Balloons to Satellites and Drones

One of the historical cases that the Chatham House paper discusses involved the United States’ launching balloons from territory inside Germany and Turkey in 1956 to spy on the Soviet Union. Those events were understood during the time of the development of the international rules on state responsibility to stand for the proposition that assistance “based on passive conduct or toleration” can violate a States’ obligation not to aid or assist another State’s international wrongdoing. It does not take a leap of imagination to see the relevance of that historical case for the near future of US national security operations and implications for US allies.

[Just Security and Chatham House have been 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 MoynihanShaheed Fatima, Miles Jackson, Alex Moorehead, and Gabor Rona.]

Image:  AP Photo/Herbert Knosowski ,U.S. Vice President Dick Cheney with leaders from 30 countries at the 60th anniversary of the liberation of the Auschwitz