When states engage in armed conflict today, it is often the case that they do so with some support from other states. The same is true with respect to counter-terrorism efforts. That support may come in many forms: from being part of a coalition that engages in actual fighting; to logistical support that enables the fighting to take place; to supply of weapons; to intelligence sharing; or capacity building in one shape or another. One only has to look at the network of state assistance to other states on all sides of the conflict in Syria, and also in Yemen. A couple of weeks ago Chatham House published a paper – “Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism” – that I would like to commend to readers. The paper, authored by Harriet Moynihan who is Associate Fellow in the International Law Programme at Chatham House, seeks to set out:
“a clear statement of the law on aiding and assisting as it stands, with particular regard to its application in situations of armed conflict and counterterrorism. The paper also aims to provide guidance to governments on best practice in their cooperation in armed conflict and counterrorism, taking into account the legal and policy issues raised by the various rules in this area.” (para. 6)
A central question addressed in the paper is: when will a state that provides assistance that is used by another state to carry out actions that are wrongful in international law, responsible for assisting that wrongful act? The paper addresses this issue by first considering (in Chapter 2) the general rule that is established with regarding to aiding and assisting in Article 16 of the International Law Commission’s Articles on the Responsibility of States 2001. Chapter 3 then pays some attention to more specific rules of international law that deal with aiding and abetting, eg Common Article 1 of the 1949 Geneva Conventions, some treaties dealing with weapons transfers and some applicable rules of international humanitarian law.
Much of the analysis in Chapter 2 deals with the tricky question of the mental element that must be fulfilled in order to establish a breach of Article 16 of the ILC Articles on State Responsibility. Read the rest of this entry…