State Responsibility for Third Country Deployed / Embedded Military Personnel Engaged in Armed Conflict

Editor’s Notes: This post was written before the announcements earlier this week that the UK had conducted a drone strike against members of Islamic State in Syria in August, and, that the Australian government plans to conduct airstrikes against Islamic State targets in Syria.

Recent reports indicate that both the UK and Australian governments have agreed to some of their military personnel being involved in kinetic operations against ISIS/Daesh targets inside Syria. This is despite, in the case of the UK, a Parliamentary ‘no-go’ in the form of a rejected 2013 motion on joining proposed US strikes against Assad regime forces in the wake of the use of chemical weapons. In Australia’s case, this authorisation appears to have come before a settled Australian view on the legality of kinetic operations against Daesh inside Syria (as opposed to inside Iraq). The report on Royal Australian Air Force UAV operators deploying to conduct operations with their host US unit was dated 14 August; but reports as late as 23 August, and even 27 August, seem to indicate that the Australian Government has yet to conclude its own legal analysis on engaging in combat operations inside Syria, subsequent to a US invitation:

‘Foreign Minister Julie Bishop insists Australia has backing under international law for extending RAAF air strikes into Syria because the area occupied by Islamic State is a lawless ungoverned space. “The legal basis for the air strikes in Syria has been laid out by the United States some time ago in a letter to the United Nations.”

“The Coalition has been invited into Iraq at the invitation of the Iraqi government. Under the principle of collective self-defence of Iraq and its people, the Coalition has extended self-defence into Syria because the border between Syria and Iraq is no longer governed; neither the Assad regime nor the Abadi regime in Iraq has control over that border,” Ms Bishop said on Sunday.

Ms Bishop said the Abbott government was drafting its own legal advice but it appeared the US, Canada and Middle Eastern countries were satisfied the Syrian air strikes were part of the “collective self-defence of Iraq and the Iraqi people”.’

In a fascinating aside, the Australian Prime Minister was recently quoted as saying “when they [IS] don’t respect the border [between Syria and Iraq], why should we?” Good question; I think it has something to do with the rule of law and being a law abiding international citizen, and the answer perhaps saying more about us than about them. But I digress. These two reports indicate an interesting issue: How does law deal with the assignment or loan of military personnel to another State (sometimes called Third Country Deployments – TCDs), when that assignment is accompanied by what appears to be an acceptance that these TCD personnel may engage in armed conflict inside yet a different State, but in circumstances where the sending or parent State is yet to come to the necessary legal conclusions to support that authorisation? There are many facets to this question, and I shall note but two.

1. State responsibility

The threshold for the allocation of responsibility in such situations, as envisaged under Article 6 of the International Law Commission’s Articles on State Responsibility (2001), is clear enough, but can be quite difficult to apply in relation to TCDs. This is because even if the Article 6 threshold is prima facie made out (and I don’t think it actually is, in respect of TCDs), there are nuances that will subtract from an ultimate finding of sufficient ‘exclusive direction and control’ being exercised by the receiving State, as is required to determine that the assigned organ (in this case, military personnel) is/are not also still acting on ‘instructions from the sending State’.

The first issue is that ‘exclusive’ direction and control is not something that States generally provide to other States in terms of TCD military personnel. Indeed, there is growing jurisprudential recognition of the fact that States retain – effectively always, nowadays – ‘full command’ of their military personnel, regardless of who is giving them operational orders at any given time (which is a matter of operational command or, more routinely, operational control). See, for example, the NATO definition of ‘full command’ here. The European Court of Human Rights has recently referred to the concept, inter alia, in the Jaloud Case (at paras 130, 143, 146, for example), and similarly so the Hague District Court in the Mothers of Srebrenica Case (at paras 4.41-4.42).

The legal essence of the concept is that States almost always retain full command of their military personnel, even when assigned to other States as TCDs. A generally sound indicator is that the assigned TCDs remain subject to the disciplinary and criminal law of their parent State, rather than that of the receiving State, as will often be expressed in the relevant SOFAs or other such instruments. Another generally sound indicator is that TCDs often take ‘national caveats’ or ‘national red cards’ with them, in the form of briefings from their parent State as to certain national Rules of Engagement or other limitations they are to abide by even whilst conducting operations as part of the receiving State’s forces.

The second issue is that TCDs are, arguably, an example par excellence of the special situation described in James Crawford’s commentary on Article 6: ‘Situations can also arise where the organ of one State acts on the joint instructions of its own and another state… in these cases, the conduct in question is attributable to both States…’ (at p103, and more generally at pp272-5 in relation to Article 47).

The ‘so what’ of all this is that the consequences of TCD conduct are not entirely separable from their ultimate status as a sending State agent. Thus the UK argument – which is reported as having been that ‘When embedded, UK personnel are effectively operating as foreign troops’ – may be a just a little too glib, and may not be legally sound.

2. TCDs, domestic law, and national conflict characterisations

The issue here is simply this: If a State A has not come to the legal conclusion that: (a) They have a legal basis to intervene in the territory of another State (State D) – such as collective self-defence under Article 51 UN Charter or its customary equivalent; and also (b) that the situation is one of armed conflict, and that State A is now, or is about to be, a party to that armed conflict; then what legal basis underpins the employment of LOAC authorisations by people who are still ultimately State A agents (military members on TCD) against a group that State A has not yet defined as a targetable group insofar as that designation operates for State A inside State D’s territory?

Assume State A has deployed some of its military members to be integrated within State B forces. Assume that State B has concluded that it has the necessary legal authorisations to carry out LOAC based operations against Group C inside the territory of State D. However, State A has not yet made its own, separate, national determination that it also has the independent legal authority to carry out LOAC based operations against Group C inside State D. Indeed, assume State A has even stated that it is yet to do so, or that it must give weight to some form of previously expressed caveat or bar relating to this decision. Is it possible that State A can cite and rely upon State B’s legal analysis and conclusions to justify State A agents carrying out kinetic operations against Group C inside State D, whilst simultaneously maintaining that it still needs to determine the legal situation for itself? Isn’t this playing a bit fast and loose with sovereign responsibilities?

And then what of the consequences? What if State A agents (TCDs) are engaged in a kinetic operation which was recklessly planned and results in excessive collateral damage? The terms of any SOFA or MOU between State A and State B will most likely immunise the State A TCD personnel from State B legal process. But if one of the killed civilians has a next-of-kin who is a citizen of State A, and brings a suit in State A courts, what criteria will the court use to assess that State A agent’s conduct? In a re-run of the conundrum posed for the Germans by the Kunduz tanker incident, it would to a large extent depend upon the national legal context. It may well be, for example, that the national court asks the following question: ‘What was our (State A) legal characterisation of the Group C – State B situation at the time of the allegedly reckless strike?’ If the answer is ‘State A had not at that time decided that it was a participant in an armed conflict against Group C inside the territory of State D’, then this may well rule out access to domesticated LOAC as the criteria for assessing that TCD’s conduct. This would mean that the applicable criteria would logically be the routine deployed ‘law enforcement’ military powers in situations where State A agents are not participants in an armed conflict. This conclusion carries with it a likely limitation on use of lethal force to immediate self-defence situations.

Conclusion

Perhaps these two reports are isolated examples, but the issues they point to are far more universal. First, how do we treat, as a matter of international law, attribution and responsibility for consequences engaging potential State responsibility, in the case of perhaps lightly monitored – but nevertheless still jurisdictionally retained and operationally caveated – military personnel assigned to the forces of another State for operational purposes? This generally needs to be sorted out before we can we make a nuanced assessment as to how this determination might interact with the ever-present jurisdiction to assess individual criminal responsibility for prima facie unlawful outcomes, which in most situations remains with the sending State, rather than the receiving State. Second, does the generally accepted concept of retained full command effectively mean that ASR Article 6 can never realistically apply to TCDs or other loaned military personnel? I think that it logically does.