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. The paper provides an excellent overview of the issues, starting with the tension between the text of Art. 16 that requires knowledge and the ILC’s own commentary that seems to require that assistance be given “with a view” to, or with the intent of, facilitating the commission of wrongful act. The clarity in the analysis is extremely useful, setting out the key issues methodically and examining the arguments in detail. There is much to be learned here. On the question of whether knowledge alone suffices, the paper states that: “On the whole, the better view appears to be that intent is a necessary part of Article 16, in addition to knowledge.” [para. 64] However, it then states elegantly that “[k]knowledge or virtual certainty that the recipient state will use the assistance unlawfully is capable of satisfying the intent element under Article 16, whatever its desire or purpose”. [para. 70] On this view, purpose is not required, intent is but knowledge will usually satisfy the intent requirement. In this way, the gap between the calls for a standard based on knowledge and that based on intent is virtually (if not entirely) eliminated, as long as we accept that purpose is not part of the intent requirement.
While the paper deals mainly with assistance by states to other states, some parts of it (in both chapters 3 & 4) address issues that arise with respect to assistance by states to non-state actors. The final chapter sets out some strategies and recommendations for governments to reduce the risk of assisting unlawful acts by other states. For governments this may well be the most important chapter as it sets out practical steps and decision making processes that they can adopt in order to avoid being responsible for aiding unlawful conduct.
In addition to the paper, I would also commend to readers the mini-forum on the paper that was recently held on the Just Security blog. That forum included an introduction to the paper by Harriet Moynihan, with responses from Shaheed Fatima, Miles Jackson, Alex Moorehead, and Gabor Rona and Ryan Goodman.