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COMPLICITY IN VIOLATIONS OF HUMAN RIGHTS AND HUMANITARIAN LAW BY INCUMBENT GOVERNMENTS THROUGH DIRECT MILITARY ASSISTANCE ON REQUEST

Published online by Cambridge University Press:  10 January 2018

Erika de Wet
Erika de Wet*
Affiliation:
Professor of International Constitutional Law, University of Pretoria, South Africa; Honorary Professor, University of Bonn, Germany; [email protected].
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Abstract

This article examines whether general international law supports the claim that direct military assistance by one State to another State upon the latter's request is prohibited where the inviting State is implicated in (gross) violations of international humanitarian and/or human rights law. It approaches the question from the perspective of State responsibility, analysing the threshold requirements of Article 16 of the Articles on State Responsibility (ASR),1 which represents the customary international law standard for responsibility for aiding or assisting wrongful conduct by another State. In so doing, the article illuminates how factual uncertainties complicate the triggering of the responsibility of the intervening (assisting) State for any violations of international humanitarian and/or human rights law by the territorial (recipient) State. Thereafter, the article questions whether, in the event that the responsibility of the intervening State is triggered, it would in consequence have to withdraw its troops and/or military air power from the territorial State.

Keywords

human rightspublic international lawinternational humanitarian lawintervention by invitationState responsibilityuse of force
Type
Articles
Information
International & Comparative Law Quarterly , Volume 67 , Issue 2 , April 2018 , pp. 287 - 313
Copyright
Copyright © British Institute of International and Comparative Law 2018 

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References

1 ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries’ (2001) II UNYBILC; UN Doc A/Res/56/83 (12 December 2001).

2 Institut de Droit International (IDI), Resolution on Military Assistance on Request (8 September 2011) arts 1(a) and (b), available at <http://www.idi-iil.org/app/uploads/2017/06/2011_rhodes_10_C_en.pdf>. For its earlier work on the same topic, see IDI, Resolution on the Principle of Non-Intervention in Civil Wars (14 August 1975) art 1 <http://www.idi-iil.org/app/uploads/2017/06/1975_wies_03_en.pdf>.

3 IDI (n 2) art 3.

4 Lanovoy, V, Complicity and Its Limits in the Law of International Responsibility (Hart Publishing 2016) 6Google Scholar. Examples of direct violations of international humanitarian law by the intervening State would include indiscriminate targeting of civilians by the assisting State during military operations, which can occur either through the use of weapons, which are in themselves indiscriminate, or by the indiscriminate use of lawful weapons. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977), 1125 UNTS, art 51(2). See Finucane, B, ‘Partners and Legal Pitfalls’ (2016) 92 International Law Studies 412 Google Scholar.

5 Nolte, G and Aust, HP, ‘Equivocal Helpers – Complicit States, Mixed Messages and International Law’ (2009) 58 ICLQ 5 Google Scholar. In addition, there may be individual criminal responsibility for State agents under international criminal law. See H Moynihan, ‘Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism’ (November 2016) Chatham House Research Paper, 7 <https://www.chathamhouse.org/sites/files/chathamhouse/publications/research/2016-11-11-aiding-assisting-challenges-armed-conflict-moynihan.pdf>. See also Gray, C, ‘The Limits of Force’ (2016) 367 Collective Courses of the Hague Academy of International Law 175 Google Scholar.

6 See Nolte, G, ‘The Resolution of the Institut de Droit International on Military Assistance on Request’ (2012) 45 Revue Belge de Droit International 253 Google Scholar, 260.

7 According to IDI (n 2) art 2, the resolution does not apply to situations of non-international armed conflicts (NIACs). If the resolution indeed were not to apply to NIACs, most current situations of direct military assistance on request of incumbent governments would fall outside of its scope. Elsewhere, this author has argued that interventions at the request of an incumbent government during a NIAC as such is accepted in State practice. See de Wet, E, ‘The Modern Practice of Intervention by Invitation in Africa and Its Implications for the Prohibition of the Use of Force’ (2015) 26 EJIL 979 Google Scholar; for a different opinion, see Bannelier-Christakis, K, ‘Military Interventions against ISIL in Iraq, Syria and Libya, and the Legal Basis of Consent’ (2016) 29 LJIL 743 Google Scholar.

8 For example, the transfer of conventional weapons from one State to another could trigger State responsibility if the assisting State was aware that the arms would be used to attack civilians or civilian objects. See Arms Trade Treaty (adopted 2 April 2013) 52 ILM 988, art 6; see also Finucane (n 4) 419.

9 The Queen on the Application of Campaign Against Arms Trade v The Secretary of State for International Trade [2017] EWHC 1726 (QB) paras 64ff. See also Final Report of the Panel of Experts on Yemen, S/2017/81 (31 January 2017) paras 119 and 126ff.

10 See Lanovoy (n 4) 41–2.

11 ILC (n 1).

12 The customary status of art 16 ASR (n 1) has been confirmed in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43, para 420. In Al-M (5 November 2003) 2 BVerfGE 1506/3 [47], the German Federal Constitutional Court was confronted with a case where Germany was accused of aiding the United States in luring a Yemeni citizen to Germany by trickery, after which the person faced an extradition request to the United States. The Court determined that if there were indeed an international rule against trickery, Germany would be liable in accordance with art 16 ASR. See Jackson, M, Complicity in International Law (Oxford University Press 2015) 151Google Scholar; ILC (n 1) para (7); Moynihan (n 5) 6; Nolte and Aust (n 5) 7. See also Aust, HP, Complicity and the Law of State Responsibility (Cambridge University Press 2011) 113ffGoogle Scholar for a discussion of situations in which States buttressed their argumentation with art 16 ASR.

13 This remains the case regardless of whether one regards art 16 ASR as a primary or secondary rule of international law (a distinction which in itself is controversial). On the one hand, art 16 ASR resembles a primary rule as it does not merely address the consequences of a wrongful act, but extends responsibility for that act to the assisting State. On the other hand, it has the characteristics of a secondary rule as the wrongfulness of the assisting State's conduct is derived from the wrongfulness of the conduct of the receiving State. See Nolte and Aust (n 5) 8; Moynihan (n 5) 2 and 7. See also Jackson (n 12) 149–50 who argues that art 16 ASR is a primary rule.

14 Aust (n 12) 383; Moynihan (n 5) 28; Jørgensen, NHB, ‘Complicity in Torture in a Time of Terror: Interpreting the European Court of Human Rights Extraordinary Rendition Cases’ (2017) 16 Chinese Journal of International Law 22 Google Scholar.

15 See Aust (n 12) 383 and 417, who describes art 16 ASR as the ‘red line’ for incurring responsibility for aiding or assisting the ‘point of no return’.

16 Aust (n 12) 390–1 and 417.

17 Lanovoy (n 4) 211.

18 El-Masri v The Former Yugoslav Republic of Macedonia, App No 39630/09, ECtHR Judgment of 13 December 2012 (GC), paras 180–223. Similarly, art III(e) of the Convention on the Prevention and Punishment of Genocide (adopted 9 December 1948) 278 UNTS 1021 (Genocide Convention) constitutes an example of a specialized regime. Although this provision focuses on the punishing of individuals who were involved in genocide, the ICJ has concluded that the acts enumerated in art III (which includes complicity to genocide) could also trigger State responsibility.

19 El Masri deicison (n 18) para 97.

20 See also Al Nashiri v Poland, App No 28761/11, ECtHR Judgment of 24 July 2014 (Former Fourth Section); Husayn (Abu Zubaydah) v Poland, App No 7511/13, ECtHR Judgment of 24 July 2014 (Former Fourth Section); and Nasr and Ghali v Italy, App No 44883/09, ECtHR, Judgment of 23 February 2016 (Fourth Section). While the ECtHR did make general references to art 16 ASR, it did not integrate its benchmarks into its analysis. Therefore, it is difficult to ascertain whether and to what extent art 16 ASR did inform the ECtHR's decision. See Jørgensen (n 14) 31. See Bosnia Genocide decision (n 12) para 166. See also Aust (n 12) 383; Lanovoy (n 4) 225–6; Moynihan (n 5) 28.

21 See Oswald, B, ‘Interplay as Regards Dealing with Detainees in International Military Operations’ in de Wet, E and Kleffner, JK (eds), Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations (Pretoria University Law Press 2014) 76ffGoogle Scholar.

22 Lanovoy (n 4) 204. Moreover, the principles underpinning art 16 ASR have also influenced the responsibility framework applicable to international organizations, as art 14 of the 2011 Draft Articles on the Responsibility of International Organizations (DARIO) effectively mirrors the content of art 16 ASR. See ILC, ‘Draft Articles on the Responsibility of International Organizations, with Commentaries 2011’ (2011) II UNYBILC; (DARIO), art 14.

23 See Security and Defense Cooperation Agreement between the Islamic Republic of Afghanistan and the United States of America of 30 September 2014 (Bilateral Security Agreement/BSA) <http://mfa.gov.af/Content/files/BSA%20ENGLISH%20AFG.pdf>. Aerial attacks by the United States at the request of the Afghan government at times have directly resulted in civilian casualties. For example, in October 2015 an erroneous aerial attack on a hospital run by Médecins Sans Frontières resulted in 67 casualties. See Report of the Secretary-General, The Situation in Afghanistan and Its Implications for International Peace and Security, UN Doc A/70/601–S/2015/942 (10 December 2015) paras 29–30. See also Report of the Secretary-General, The Situation in Afghanistan and Its Implications for International Peace and Security, UN Doc A/71/616–S/2016/768 (7 September 2016) para 19.

24 Report of the Secretary-General, The Situation in Afghanistan and Its Implications for International Peace and Security, UN Doc A/70/601-S/2015/942 (10 December 2015) para 29; Report of the Secretary-General, The Situation in Afghanistan and Its Implications for International Peace and Security, UN Doc S/2016/1049 (13 December 2016) para 29. See also Human Rights Watch, ‘Afghanistan events of 2015’, World Report: Afghanistan (2016) <https://www.hrw.org/world-report/2016/country-chapters/afghanistan>. In August 2015, President Ghani issued orders to assess operational procedures and to take steps to reduce civilian casualties.

25 The National Directorate of Security (NDS) reaffirmed an order prohibiting torture in June 2015. However, it remains unclear whether and to what extent any of these cases was investigated and prosecuted. See Human Rights Watch (Afghanistan) (n 24).

26 The White House, ‘Statement of the President’ (7 August 2014) <http://www.whitehouse.gov/the-press-office/2014/08/07/statement-president>; Bannelier-Christakis (n 7) 751.

27 Report of the Secretary-General Pursuant to Resolution 2299 (2016), UN Doc S/2016/897 (25 October 2016) para 46; A Dewan, ‘Amnesty International: Iraqi Forces Must Not Repeat “War crimes” in Mosul Offensive’ CNN (18 October 2016) <http://edition.cnn.com/2016/10/18/middleeast/iraq-mosul-amnesty-international/>.

28 Dewan (n 27). The Iraqi Prime Minister, Haider al-Abadi, as well as the Kurdistan Regional Government have stated that they have established procedures to investigate the allegations. A KRG spokesman further submitted that some officials had been punished for human rights violations.

29 Joint Communiqué issued at the Conclusion of a Meeting between the Government of Kenya and the Transitional Federal Government of Somalia of 18 October 2011, paras 1 and 2, <http://graphics8.nytimes.com/packages/pdf/world/joint-communique-kenya-somalia.pdf>.

30 See African Union Mission to Somalia (AMISOM) <http://amisom-au.org/kenya-kdf/>.

31 Military operations by Kenyan and Ethiopian forces in late 2011 and early 2012 also resulted directly in civilian casualties. See Secretary-General, Report of the Secretary-General on Somalia, UN Doc S/2012/283 (1 May 2012) paras 68 and 70.

32 Identical letters dated 11 January 2013 from the Permanent Representative of France to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc S/2013/17 (14 January 2013); see also Bannelier-Christakis (n 7) 859.

33 Human Rights Watch, ‘Mali: Events of 2013’ World Report (2014) <https://www.hrw.org/world-report/2014/country-chapters/mali>.

34 Report of the Secretary-General, Report of the Secretary-General on the Situation in Mali, UN Doc S/2013/338 (10 June 2013) para 35; Report of the Secretary-General, Report of the Secretary-General on the Situation in Mali, UN Doc S/2013/582 (1 October 2013) paras 36ff; Human Rights Watch (Mali) (n 33).

35 President Museveni of Uganda, at the invitation of President Salva Kiir, sent troops across the border shortly after fighting had broken out between forces loyal to President Kiir and rebels in December 2013. The countries signed a Status of Forces Agreement between the Government of the Republic of Uganda and the Government of the Republic of South Sudan of 10 January 2014, <http://www.sudantribune.com/IMG/pdf/status_of_forces_agreement-2.pdf>.

36 The Agreement on the Resolution of the Conflict in the Republic of South Sudan of 17 August 2015, <http://www.gurtong.net/LinkClick.aspx?fileticket=CytVwytJdyM%3D&tabid=124>. This Agreement was steered by the Intergovernmental Authority on Development (IGAD) and signed by the two warring parties and another breakaway SPLM faction, the G10. See F Nicolaisen, T Heggli Sagmo and O Rolandsen, ‘South Sudan – Ugandan Relations. The Cost of Peace’ African Centre for the Constructive Resolution of Disputes (ACCORD) (23 December 2015), <http://www.accord.org.za/conflict-trends/south-sudan-uganda-relations/>.

37 Human Rights Watch, ‘South Sudan: Events of 2014’ World Report (2015), <https://www.hrw.org/world-report/2015/country-chapters/south-sudan>. In one incident, government forces rounded up between 200 and 400 Nuer men and a day later massacred all but 13.

38 Secretary-General, Report of the Secretary-General on South Sudan, UN Doc S/2014/821 (18 November 2014) para 43.

39 Special Report of the Secretary-General on the Review of the Mandate of the United Nations Mission in South Sudan, UN Doc S/2016/951 (10 November 2016) paras 14ff; S Jones, ‘UN Report: South Sudan Allowed Soldiers to Rape Civilians in Civil War’ The Guardian (11 March 2016) <https://www.theguardian.com/global-development/2016/mar/11/south-sudans-soldiers-allowed-to-rape-civilians-civil-war-says-un-government-torture>. See also UN Doc S/RES/2206 (3 March 2015) Preamble; UN Doc S/RES/2223 (28 May 2015) paras 22ff; UN Doc S/RES/2252 (15 December 2015) para 25; UN Doc S/RES/2327 (16 December 2016) paras 22ff.

40 See eg UN Human Rights Council, First Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc A/HRC/S-27/2/Add.1 (23 November 2011) paras 51ff; Seventh Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc A/HRC/25/65 (12 February 2014) paras 21ff.

41 UN Doc A/HRC/31/68 (Advanced Edited Version) (11 February 2016) paras 19 and 28. See also Human Rights Council, ‘They Came to Destroy: ISIS Crimes Against the Yazidis’ UN Doc A HRC/32/CRP.2 (15 June 2016) para 191.

42 Bannelier-Christakis (n 7) 760.

43 Letter dated 15 October 2015 from the Permanent Representative of the Russian Federation to the United Nations addressed to the President of the Security Council, UN Doc S/2015/792 (15 October 2015) 2; H Rohani, ‘La lutte contre le terrorisme doit être la base de tout en Syrie’ Le Monde (29 January 2016), <http://www.lemonde.fr/international/article/2016/01/29/hassan-rohani-la-lutte-contre-le-terrorisme-doit-etre-la-base-de-tout-en-syrie_4855748_3210.html>; see also Bannelier-Christakis (n 7) 760–1.

44 Record of UNSC meeting 7777 (25 September 2016), UN Doc S/PV.7777, 5–7 (United States); ibid 9 (United Kingdom); J Algot, ‘Boris Johnson: Russian Complicity in War Crimes Precludes Syria Talks’ The Guardian (20 October 2016).

45 Record of UNSC Meeting 7387 (18 February 2015), UN Doc S/PV.7387, 5 (Libya); UN Doc S/RES/2259 (23 December 2015) para 12. In February 2016, NATO and 23 States participating in a meeting on Libya in Rome declared that it would only intervene in Libya after the formation of a government of national unity and a request from this government to NATO to intervene. See Statement by NATO Secretary-General, Jens Stoltenberg, cited by N Guibert and G Paris, ‘L'OTAN n'interviendra pas sans accord politique national en Libye’ Le Monde (2 February 2016), <http://www.lemonde.fr/international/article/2016/02/01/libye-l-otan-n-interviendra-pas-sans-accord-politique-national_4857166_3210.html>; See also Bannelier-Christakis (n 7) 758–9.

46 Report of the Secretary-General, Report of the Secretary-General on the United Nations Support Mission in Libya, UN Doc S/2016/1011 (1 December 2016) para 33. For human rights violations during 2014 and 2015, see Office of the United Nations High Commissioner for Human Rights, Investigation by the Office of the United Nations High Commissioner for Human Rights on Libya, UN Doc A/HRC/31/47 (15 February 2016) paras 16ff.

47 Report of the Secretary-General on the United Nations Support Mission in Libya, (n 46) paras 37 and 43.

48 ibid paras 39ff.

49 M Nichols, ‘UPDATE 1 – Yemen Asks UN to Back Military Action by “Willing Countries”’ Reuters (24 March 2015) <http://uk.reuters.com/article/yemen-security-un-idUKL2N0WQ29620150324>.

50 Final Report of the Panel of Experts on Yemen (n 9) paras 119 and 126ff; CAAT case (n 9) paras 64ff.

51 European Parliament, Resolution on the Situation in Yemen (2015/2760(RSP), 9 July 2015 (AB B(EP)1-B(EP) 6).

52 Final Report of the Panel of Experts on Yemen (n 9) para 132ff; EM Lederer, ‘UN Experts Say Saudi Coalition Violated International Humanitarian Law in Yemen Attack’ The Independent (21 October 2016) <http://www.independent.co.uk/news/world/middle-east/un-saudi-arabia-yemen-air-strikes-violated-international-law-a7372936.html>.

53 See Record of UNSC meeting 7777 (25 September 2016), UN Doc S/PV.7777, 5–7 (United States); ibid 9 (United Kingdom); Algot (n 44). See Record of UNSC meeting 8055 (25 September 2017), UN Doc S/PV.8055, 9 (Russia) for criticism of the political wisdom of the United States military strategy in Afghanistan.

54 ILC, art 16 ASR (n 1).

55 Moynihan (n 5) 7; Lowe, V, ‘Responsibility for the Conduct of Other States’ (2002) 101 Journal of International Law and Diplomacy 5 Google Scholar.

56 Moynihan (n 5) 29.

57 ibid.

58 ILC Commentary to art 16 ASR (n 1) para (6); Moynihan (n 5) 10; Jackson (n 12) 162.

59 Moynihan (n 5) 10; Jackson (n 12) 162.

60 The status of ratifications of the four Geneva Conventions of 1949 on the laws and customs of war are available at <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp>.

61 Crawford, J, State Responsibility: The General Part (Cambridge University Press 2013) 404–5Google Scholar. Both Aust (n 12) 209 and 226 and Jackson (n 12) 155–6 are critical of the dominant position and suggest that complicity through omission is plausible.

62 Aust (n 12) 226–7.

63 Bosnia Genocide decision (n 12) para 432.

64 Jackson (n 12) 155; Aust (n 12) 226. It is also worth mentioning that in Prosecutor v Jean Paul Akayesu, Case No ICTR-96-4-T (2 September 1998) para 548, Trial Chamber I of the International Criminal Tribunal for Rwanda suggested that aiding and abetting in international criminal law can consist of an omission.

65 Lanovoy (n 4) 97.

66 Lanovoy (n 4) 95; Moynihan (n 5) 7; Jackson (n 12) 153; Aust (n 12) 129.

67 Moynihan (n 5) 9; Aust (n 12) 195 and 217.

68 ILC Commentary to art 16 ASR (n 10) paras (1) and (5). See also Jackson (n 12) 158; Moynihan (n 4) 8; Aust (n 12) 197 and 210; Lanovoy (n 4) 97.

69 Moynihan (n 5) 9; Aust (n 12) 195 and 217. A further consequence of the sine qua non test would be to absolve the main actor from any responsibility for the international wrongful act, as the emphasis on the causal impact could shift most of the responsibility to the assisting State.

70 Aust (n 12) 220.

71 ibid; Talmon, S, ‘A Plurality of Responsible Actors – International Responsibility for Acts of the Coalition Provision Authority in Iraq’ in Shiner, P and Williams, A (eds), The Iraq War and International Law (1st edn, Hart Publishing 2008) 220 Google Scholar.

72 Lowe (n 55) 5; Lanovoy (n 4) 184 and 185.

73 Rasheed Haje Tugar v Italy (Admissibility) [1995] ECHR (First Chamber), App No 22869/93 Ser 83-A 26; Lanovoy (n 4) 173.

74 Rasheed Haje Tugar decision (n 73).

75 Rasheed Haje Tugar decision (n 73) 29; Lanovoy (n 4) 173.

76 Lanovoy (n 4) 173.

77 Lanovoy (n 4) 174.

78 Aust (n 12) 130.

79 Lanovoy (n 4) 174.

80 Lanovoy (n 4) 174 and 218.

81 In R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs (Judgment) [2009] EWHC 1910 (Admin) para 7, a court in the United Kingdom dismissed a claim pertaining to art 16 ASR as non-justiciable. The organization Al-Haq, based in Ramallah, brought a claim for judicial review of the United Kingdom's arms trade policy with Israel, in light of the January 2009 human rights violations committed in Palestine. Al-Haq claimed that the United Kingdom's continued trading of military equipment with Israel violated the former's customary obligations under art 16 ASR. See also Lanovoy (n 4) 175.

82 Moynihan (n 5) 8.

83 ILC Commentary to art 16 ASR (n 1) para (4); Moynihan (n 5) 11.

84 Moynihan (n 5) 11; Crawford (n 61) 407. In the Bosnia Genocide decision (n 12) para 421, the ICJ referred to art 16 ASR when considering the complicity provision in the Genocide Convention (n 18). The Court noted that Serbia had not known that genocide was being committed by the Bosnian Serb army, since Serbia was not aware of the specific intent of the forces concerned.

85 Moynihan (n 5) 11 and 24.

86 Lanovoy (n 4) 227.

87 Moynihan (n 5) 11.

88 Moynihan (n 5) 13.

89 Moynihan (n 5) 12; Lanovoy (n 4) 100.

90 Moynihan (n 5) 13 and 15; Aust (n 12) 235–6; Lanovoy (n 4) 22. This point was reaffirmed during debates pertaining to art 14 of the DARIO (n 22), where it was emphasized that ‘actual’ and not presumed knowledge was required. See ILC, Responsibility of International Organizations, Comments and Observations Received from International Oganizations (14 February 2011) UN Doc A/CN.4/637, 28 (World Bank); see also ILC, Comments and Observations Received from Governments (2001) UN Doc A/C.6/54/SR.22, 52 (United Kingdom; United States). See also the Bosnia Genocide decision (n 12) para 421. The ICJ determined that in the case of genocide, complicity required at least knowledge of the specific intent of the principal perpetrator. This suggests actual knowledge which is a stricter requirement than ‘should have known’. See also Jørgensen (n 14) 31.

91 ILC, Commentary to art 16 ASR (n 1) para (4); Lowe (n 55) 10; Lanovoy (n 4) 99–100.

92 Lanovoy (n 4) 174 and 234.

93 Lanovoy (n 4) 253.

94 ibid.

95 Moynihan (n 5) 12. See also Lowe (n 55) 6 who notes that the mere possibility that assistance will be used for unlawful acts does not suffice as such a possibility always exists in principle.

96 Statement of The Netherlands, UNYBILC, Vol II, Pt One (2001) 52; Crawford (n 61) 406; Lowe (n 55) 8; Moynihan (n 5) 13; Aust (n 12) 233–5; Lanovoy (n 4) 100.

97 Lanovoy (n 4) 227.

98 Bosnia Genocide decision (n 12) para 430; Lanovoy (n 4) 238.

99 Lanovoy (n 4) 100 and 227.

100 Lanovoy (n 4) 101 and 238. See also The Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6, 22–23, which emphasizes the relevance of the publicity and communication of information (in this instance maps).

101 Moynihan (n 5) 14; Jackson (n 12) 162.

102 Moynihan (n 5) 15; Jackson (n 12) 162.

103 Moynihan (n 5) 13; Lanovoy (n 4) 253. The longer the violations of international law by the recipient States continue, the more likely it is that the assisting State is aware of the wrongful conduct and is turning a blind eye. See also Jackson (n 12) 162.

104 CAAT case (n 9) paras 64ff; E Wilmshurst, ‘Testing Jackson's Discussion of State Responsibility in the Context of Government Assistance. Book Discussion’ EJIL:Talk! (13 April 2017), <https://www.ejiltalk.org/author/elizabethwilmshurst/>.

105 CAAT case (n 9) paras 1, 4 and 6. The applicable law concerned secs 8 and 9(3) of the Export Control Act 2002. Sec 9, in particular, incorporated European Council Common Position 2008/944/CFSP (The Common Rules Governing the Control of Exports of Military Technology and Equipment), as well as obligations under the Arms Trade Treaty (n 8).

106 Some United Kingdom staff members are located in the Saudi Arabian military headquarters in a liaison capacity, in order to obtain information about targeting procedures. However, they are not involved in any direct way in selecting targets, although they have advised the Saudi Arabian government on targeting. The United Kingdom has also trained the Saudi Arabian military personnel on compliance with international humanitarian law, and provided logistical and technical support. See also CAAT case (n 9) para 121; Wilmshurt (n 104). See First Joint Report of the Business Innovation and Skills and International Development Committees of Session 2016–17, The use of UK-manufactured arms in Yemen. Response of the Secretaries of State for International Trade, Defence and International Development‘(November 2016).

107 CAAT case (n 9) paras 126ff.

108 CAAT case (n 9) paras 150ff.

109 ibid paras 208(7) and (8).

110 ibid para 25.

111 ibid paras 129 and 135.

112 ibid para 31.

113 ibid paras 209 and 210.

114 ibid para 180.

115 CAAT case (n 9) paras 31, 34. The High Court attached significant weight to the assisting government's own risk assessment, in light of the technical and complex nature of such assessments and its intertwinement with matters of national security.

116 ibid para 181(iii).

117 Lanovoy (n 4) 101.

118 ILC Commentary to art 16 ASR (n 1) para (5); Finucane (n 4) 417; Lanovoy (n 4) 101.

119 Aust (n 12) 172; Moynihan (n 5) 18; Crawford (n 61) 407–8.

120 See Aust (n 12) 235–6 and 241ff, who notes some of the criticisms against the intent requirement in the context of State responsibility. These, inter alia, include the difficulty in attributing psychological requirements to States that in the abstract do not have a will of their own. Also, where the assisting State's intent is inferred from its conduct, this State would bear the onus of proving that it did not have any intent to aid or assist an internationally wrongful act. Proving ‘a negative’ may be very difficult to do. Similarly, Lanovoy (n 4) 101.

121 Lanovoy (n 4) 221.

122 ibid 230; see Bosnia Genocide decision (n 12) para 419.

123 See n 18.

124 Lanovoy (n 4) 230.

125 Bosnia Genocide decision (n 12) para 421; Lanovoy (n 4) 231.

126 Bosnia Genocide decision (n 12) para 422; Lanovoy (n 4) 232.

127 At the crucial time, it could not be established that the FRY supplied aid or assistance to the forces of Republika Srpska knowing that such assistance would be used to commit genocide. Bosnia Genocide decision (n 12) para 423; Lanovoy (n 4) 232.

128 Lanovoy (n 4) 231.

129 Lanovoy (n 4) 231 and 232.

130 See Lanovoy (n 4) 229 and 232; see also Corfu Channel (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4, 18.

131 Lanovoy (n 4) 221.

132 See Moynihan (n 5) 19 who draws an analogy between individual criminal responsibility under international criminal law and State responsibility under art 16 ASR. While such analogies need to be handled with care, a logic similar to that of art 16 ASR is displayed in art 30(2) of the Statute of the International Criminal Court (adopted 17 July 1998) 2187 UNTS 38544. It determines that ‘a person has intent where (a) in relation to conduct, that person means to engage in the conduct; (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events’.

133 Jackson (n 12) 160.

134 Moynihan (n 5) 21; Lanovoy (n 4) 232.

135 CAAT case (n 9) paras 181(iii), 209 and 210.

136 Art 40(1) ASR (n 1).

137 Art 40(2) ASR (n 1).

138 ILC Commentary to art 40 ASR (n 1) para (5).

139 ILC Commentary to art 40 ASR (n 1) para (7); Lanovoy (n 4) 111.

140 See Lanovoy (n 4) 112 who criticizes this limitation.

141 Lanovoy (n 4) 106; Aust (n 12) 336.

142 Art 41 ASR (n 11).

143 Art 42 ASR (n 11) (emphasis added). See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, P [2004] ICJ Rep 136, para 159.

144 For a discussion, see Aust (n 12) 336–7.

145 Aust (n 12) 337; Lanovoy (n 4) 108.

146 ILC, Commentary to art 41 ASR (n 11) para (4); Lanovoy (n 4) 108.

147 ILC Commentary to art 41(2) ASR (n 11) para (11); Lanovoy (n 4) 106 and 115.

148 ILC Commentary to art 41(2) ASR (n 11) para (11); Aust (n 12) 381; Lanovoy (n 4) 107–8.

149 ILC Commentary to art 41(2) ASR (n 11) para (11); Lanovoy (n 4) 115.

150 ILC Commentary to art 41(2) ASR (n 11) para (11).

151 ILC Commentary to art 41(2) ASR (n 1) para (11); Moynihan (n 5) 22–3; Nolte and Aust (n 5) 16; Lanovoy (n 4) 115 and 238.

152 Aust (n 12) 417.

153 Aust (n 12) 336 and 343ff. See also Lanovoy (n 4) 115. The serious breaches are also likely to be of a continuous nature and, therefore, would in any case also fall under art 16 ASR (n 1).

154 Moynihan (n 5) 22; Aust (n 12) 336 and 343ff. According to Lanovoy (n 4) 116–7, art 41(2) ASR and art 42 DARIO may have a certain added value in relation to the nexus requirement, as the aid or assistance need not significantly contribute to the maintenance of the situation flowing from the serious breach of a peremptory norm. A lower degree of significance in relation to the link with the wrongful act would be acceptable, as one is dealing with the maintenance of a serious breach which has already occurred and not a situation pertaining to a wrongful act that still has to be committed.

155 Art 30(a) ASR (n 1); Lanovoy (n 4) 109.

156 Lanovoy (n 4) 229.

157 Lanovoy (n 4) 174.

158 Human Rights Due Diligence Policy on United Nations Support to Non-United Nations Security Forces, UN Doc A/67/775-S/2013/110 Annex (5 March 2013) paras 1, 14(d); see also HP Aust, ‘The UN Human Rights Due Diligence Policy: An Effective Mechanism Against Complicity of Peacekeeping Forces?’ (2015) 20 JC&SL 66.

159 UN Doc A/67/775-S/2013/110 Annex (n 165) para 1; Aust (n 158) 64.

160 UN Doc A/67/775-S/2013/110 Annex (n 159) paras 8(c)–(8(f) and 10; Aust (n 158) 64–5.

161 Aust (n 158) 71.

162 The Rome Statute of the International Criminal Court (adopted 17 July 1998) 2187 UNTS 90, arts 7 and 8.

163 For a list of actions that qualify as ‘gross violations’, see UN Doc A/67/775-S/2013/110 Annex (n 159) paras 12 (a)(i), (ii) and (iii); Aust (n 158) 65–6.

164 UN Doc A/67/775-S/2013/110 Annex (n 159) para 16; Aust (n 158) 71.

165 Aust (n 158) 71.

166 See Final Report of the Panel of Experts on Yemen (n 9) 129 which inter alia stated: ‘All coalition Member States and their allies also have an obligation to take appropriate measures to ensure respect for international humanitarian law by the coalition. This obligation is especially incumbent upon the Government of Yemen, upon whose request and with those consent the air strikes are being conducted.’

167 As was the case with Saudi Arabia in the CAAT case (n 9) paras 129. 135. See also Finucane (n 4) 425.

168 Finucane (n 4) 426 and 430.

169 ibid 425 and 426.

170 IDI (n 2) art 3.

171 Assuming for the sake of argument that the resolution would also apply during a NIAC.

172 Finucane (n 4) 430.