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).
Concomitantly, the existing rules on attribution under international law do not lead to the attribution of conduct by private parties to a state where the criterion of effective control is not established. Nevertheless, that state might still be held responsible under the law of state responsibility for its own failure to prevent or remedy the conduct that is not attributable to it. As regards arms transfers, the supplier state will not be held responsible for human rights violations committed by non-state actors through the weapons provided, but it will be responsible if it fails to take all necessary measures to prevent conducts contrary to international law.
Within the scholarly debate on the adequacy of the existing rules on attribution, less consideration has been given to the due diligence obligation under IHRL aimed at restraining state conduct in crisis situations. In light of the above, the due diligence obligation establishes a link between primary norms and secondary rules of state responsibility and bridges the gap between the two sets of rules. The breach of a due diligence obligation triggers state responsibility, where otherwise non-attributable acts of non-state actors would lead to a legal vaccum. Without need to rely on the existing rules on attribution, the relevant state is responsible for its own behaviour, rather than for the wrongful result (i.e. not for the human rights violations in Iraq or Syria committed or facilitated by the supplied weapons as such). Furthermore, the due diligence obligation is also interesting because it contains a subjective requirement of fault that is absent in the ILC Articles on State Responsibility (see e.g. here), and also overcomes the obstacle presented by the public-private divide in international law (see Boon, Are Control Tests Fit for the Future? The Slippage Problem in Attribution Doctrines, p. 39).
The Normative Content of the Due Diligence Obligation
The due diligence obligation depends on a particular primary rule of international law that determines the standard of state behaviour. Under IHRL, due diligence is enshrined in various human rights treaties (e.g. implicitly in Article 2 (1) ICESCR). Here, the duty relates to states’ positive obligations to take preventive measures to reduce or eliminate human rights violations committed by non-state actors. States should maintain institutions to protect human rights, for instance, they should possess a preventive apparatus and an investigative machinery that guarantees the obligation of prevention (according to the primary rule). How states use their legal apparatus, however, is a matter of due diligence. Therefore, the obligation arising from the primary norm and the due diligence obligation do not constitute one and the same obligation:
(1) Flexible duties
First, the due diligence obligation preserves for states a significant measure of flexibility in meeting their international human rights obligations. The degree of diligence depends on the particular circumstances of a specific case. The flexible notion of the duty is explained by two different categories of state obligations: obligations of conduct and obligations of result. The latter refers to the outcomes of a behaviour of a state, while obligations of conduct are best efforts obligations. As a consequence, whereas the obligation of due diligence would be breached by a failure to exercise due diligence, namely not using an apparatus diligently in order to prevent a particular harmful outcome (that will then be assessed on a case-by-case basis) – even if the bad result did not occur anyway, an obligation of prevention is not breached unless the undesired act in question in fact does occur.
(2) Contextualized obligations: ‘ad impossibilia nemo tenetur’
Second, due diligence obligations are context-dependent. There is no one single standard of diligence that applies to all primary norms. The degree of due diligence depends on the circumstances and issue at hand that takes into consideration the level of development of the state (see e.g. Prats case, US/Mexico Claims Commission of 1868 or Genocide case by the ICJ of 2007). The duty obliges states to take all reasonable measures to prevent the occurrence of the harmful outcome (see e.g. L.F.H. Neer and Pauline Neer v. United Mexican States of 1926). Apart from that, the content of the due diligence obligation may change in relation to the risks involved in the activity as well as possessing knowledge on behalf of the relevant state. As regards arms transfers, these requirements are included in the EU Council Common Position 2008/944/CFSP and in the Arms Trade Treaty (in force since 2014), requiring states to conduct risk assessments (similar to environmental impact assessments) in the national authorization processes on arms transfers where these arms are still under the control of the transferring state.
(3) Standard of ‘good government’
Third, however, flexibility is not unlimited: There might be due diligence obligations for which the same standard is required of all states regardless of their particular level of development. In 1955, Freeman noted that the standard of due diligence requires “nothing more nor less than the reasonable measures of prevention which a well-administered government could be expected to exercise under similar circumstances” (Freeman, Responsibility of States for Unlawful Acts of their Armed Forces, 1955). Even, some investment tribunals have pointed out the need for states to act “in accordance with the parameters inherent in a democratic State” or in a “reasonably well organized modern State”. In IHRL, the minimum core obligations do establish a minimum standard of protection that every state has to meet, regardless of its state of development. Thus, even under exceptional circumstances, states have to pursue their minimum core obligations – a minimum standard of state behaviour – that are not subject only to due diligence. Turning back to arms transfers, this would indicate that the authorization of transfers should be withheld in cases where there is a clear risk that these transfers may not comply with the core obligations of states.
The Due Diligence Obligation in an Extraterritorial Context
Finally, viewed against the backdrop of the crossborder dimension of the arms transfers and human rights violations that might occur outside the transferring state’s own territory, the obligation arising from the primary norm ought to be distinguished from the obligation of due diligence when it comes to assessing their extraterritorial applicability. As regards the due diligence obligation, the state is not responsible for the extraterritorial human rights violation itself, which might be attributable to it or not (as stated above, this depends whether the state in question exercises effective control or not), but rather for its failure to exercise due diligence to prevent the harmful outcome. The latter includes, among others, the correct functioning of a state’s legal apparatus. In my opinion, the due diligence obligation that applies to the use of the state apparatus is a territorial obligation, rather than extraterritorial one. The raison d’être behind it is the re-location of such a duty to an earlier point for binding states to take preventive measures at the source, namely at home, where the state in question (still) has the power to influence (its own) decision-making processes (e.g. the transfer authorization processes to third countries where human rights violations widely occur and the whereabouts of the supplied weapons remain dubious) and that its institutions function diligently, which in practice can only occur at home.
To conclude, the due diligence obligation under IHRL law performs an important function in crisis-related settings that would otherwise lead to an accountability gap due to the existing rules of state responsibility that are not applicable to cases where non-state actors are involved because acts committed by them are not attributable to the state.
Of course, the due diligence obligation is merely one aspect of the problem of attribution that has attracted much attention in recent years. Nevertheless, the due diligence obligation has the potential to make a significant contribution to the discussion on the adequacy of the rules on attribution under international law that is indispensable (including the debate on the threshold of control, which might also be relevant in cases of arms transfers). Yet, the due diligence obligation is nothing exceptional for arms transfers. Rather, one might observe similar developments in situations such as migration crises or health emergencies, but also poverty issues, to which the due diligence obligation might be applicable.