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A Shared Responsibility Trap: Supplying Weapons to the Syrian Opposition

Published on June 17, 2013        Author: 
Syran Opposition Flag (Source: Wikipedia)

Syrian Opposition Flag (Wikipedia)

Cross-posted at the SHARES Blog

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

 States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons. Read the rest of this entry…

 

The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?

Published on December 24, 2012        Author: 

André Nollkaemper is Professor of Public International Law at the Faculty of Law of the University of Amsterdam. He directs the project on ‘Shared Responsibility in International Law’ (SHARES); this piece is cross-posted on the SHARES Blog.

On 13 December 2012, the European Court of Human Rights (‘the Court’) found the that the Former Yugoslav Republic of Macedonia (‘Macedonia’) was responsible in connection with the ill-treatment and torture of Khaled El-Masri. The judgment adds a further chapter to the Court’s rich case law on situations where a state party is held responsible in connection with the (wrongful) acts of another state.

El-Masri, a Lebanese-born German national, alleged that in the period from 31 December 2003 to 29 May 2004 he had been subjected to a secret rendition operation, in which agents of Macedonia had arrested him, held him incommunicado, questioned and ill-treated him, and handed him over at Skopje Airport to CIA agents who then transferred him to Afghanistan, where he had been detained and ill-treated for over four months.

No one who reads the facts of the case will argue with the Court’s conclusion that Macedonia had to bear international responsibility. The question is on what grounds one can base this conclusion.

The approach chosen by the Court may surprise many international lawyers. Influenced by decades of work of the International Law Commission (‘ILC’), their approach would be a combination of attribution of conduct on the one hand and the breach of an international obligation, on the other: Macedonia then would be responsible for handing over El-Masri to the CIA, in the face of risk (if not certainty) that he would be ill-treated and tortured. They would not normally say that the act of ill-treatment at the hands of the CIA itself is attributed to Macedonia, but limit Macedonia´s responsibility to its own wrongful conduct. This distinction may seem a legal nicety, but it may have practical relevance (for questions of evidence and reparation) and also reflects that what is essentially a sovereignty-based consideration: it should not easily be presumed that a state is responsible for acts committed by another subject of international law.

The Court takes a somewhat different approach. But it is quite difficult to figure out what exactly this approach is. While the fact that the Court does not feel compelled to follow the ILC´s conceptual straightjacket is in many respects refreshing, its own line is at times somewhat inconsistent and confusing. For one thing, it is difficult to see why the Court uses interchangeably the terms ´attribution´ and ´imputation´ – one may guess that the Court uses the latter when it seeks to leave aside the ILC´s approach, but it would be nice if the Court would not invite us to speculate.

Read the rest of this entry…

 

Research Project on Shared Responsibility in International Law (SHARES)

Published on April 14, 2011        Author: 

The Research Project on Shared Responsibility in International Law (SHARES) is pleased to announce the official launch of the SHARES website: www.sharesproject.nl.

The website includes a detailed description of the SHARES project and its project members. The website also features news, events, publications, blog posts and resources on shared responsibility in international law.

The ambition of the SHARES project is to examine an unexplored and largely unrecognized problem: the allocation of international responsibilities among multiple states and other actors. It seeks to uncover the nature and extent of the problem of sharing responsibility in an increasingly interdependent and heterogeneous international legal order. SHARES will therefore offer new concepts, principles and perspectives for understanding how the international legal order may deal with shared responsibilities.

The SHARES project is a research project of the Amsterdam Center for International Law, led by Professor André Nollkaemper, and funded by the European Research Council.

 
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