I am grateful to Oxford University Press and the editors of EJIL:Talk! for putting together this discussion and to Elies, Elizabeth, and Helmut for their contributions. I appreciate their engagement with my work. In this piece, I consider the central points in each of their pieces.
State Assistance in Practice
Elizabeth’s three examples – the provision of arms, the use of military bases, and the grant of financial and other assistance to the justice and human rights sectors – provide a helpful grounding for considering how often questions of complicity are arising in practice. Her contribution zeroes in on the difficulties relating to the nexus element and the fault element. Taking them in turn, there are slightly different difficulties here.
As to the nexus element, even if we agree on the normative standard there is the challenge of applying that standard across the myriad ways that states provide assistance to other states. We can quite easily imagine situations where the assistance is insufficiently connected to the principal wrong, just as we can easily imagine situations where the standard is met. Beyond those poles, things are very difficult. That might seem unsatisfactory, but here it is worth emphasising the relative newness of the rule – it is still embedding itself into customary practice. As it does so, we are likely to see the incremental development and clarification of a regime-specific test.
As to the fault element, by contrast, the initial problem lies on the normative level itself – the potential discrepancy between the textual standard of knowledge and the commentary’s reference to intent. Read the rest of this entry…