This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.
In this blog post, I would like to take up a question that I discussed at the ESIL Human Rights Interest Group in Riga and analyze whether the due diligence obligation under international human rights law (IHRL) plays a role in the regulation of crisis in order to prevent or mitigate state action that has a negative impact on human rights, and what role that might be.
In doing so, I will use the debate emerging in the wake of the ongoing ‘crisis’ in the Middle East on international arms transfers by foreign governments, for instance, to the Syrian rebels or the Kurdish forces in Northern Iraq, to support the fight against IS. International arms transfers in the form of emergency military aid has drawn into the limelight the issue as to whether the recipients of the supplied arms would be able to control them or if these weapons may fall into the hands of non-intended end-users, such as private parties, likely be used to commit human rights violations on the recipient’s territory (which is what in fact happened, see here or here).
The Problématique: Attribution of Conduct
As a general principle, the acts of non-state actors fall out of the scope of the rules of state responsibility, unless they are acting under the direction or control of a state (see Article 8 of the ILC Draft Articles on State Responsibility). Crisis-related scenarios are especially characterized in a way that human rights abuses occur either due to a general situation where the wrongful conduct in question is not identifiable (e.g. in armed conflicts, natural disasters or disease outbreaks) or where acts of non-state actors are not attributable to a state due to lack of control. This might be the case in armed conflicts where third states do not engage in direct attacks but are interfering indirectly by means of state assistance (e.g. military aid in the form of arms transfers). Read the rest of this entry…