Criticisms of western governments for aiding and assisting other states to act in breach of international law are now common. While such criticisms may sometimes be as much to do with the policy of the thing, there is also increasing focus on the law. The ongoing judicial review in the English courts regarding the provision of arms and military equipment to Saudi Arabia in the context of the conflict in the Yemen (The Queen on the application of Campaign against the Arms Trade v. The Secretary of State for International Trade) illustrates the possibility of litigation on the issue in domestic courts. Miles Jackson’s book on ‘complicity’ gives an introduction and a foundation for thinking about this highly topical subject, in the context both of international criminal law and of state responsibility, and adds to the growing literature. This brief note considers, in the context of state responsibility, whether the book is also of use to the practitioner – whether government adviser, non-governmental organisation, or advocate – who has to apply the law before or after the event.
Jackson’s discussion of state responsibility can be tested in the context of three examples of government assistance; the choice of examples here is unashamedly UK-centric, but instances can be found in many other countries. The first is the provision to other governments of arms and other materiél in a conflict to which the assisting government is not a party and where the assisted government is alleged to be in breach of international humanitarian law in the conduct of the conflict. The second example stems from allowing other governments the use of airfields and military bases on the assisting government’s territory. Here there may be allegations of breaches of ius ad bellum by an assisted state which uses a loaned base to launch an armed conflict, or of human rights abuses such as unlawful rendition of individuals from the base. The third example is the provision of financial and practical aid to improve another state’s justice or human rights sectors. In such a case the relevant sectors of the assisted government are unlikely to have a good record: is it lawful to assist them to improve, or will the aid make the assisting state complicit?
Jackson takes us swiftly through the necessary preliminary conclusions that the rule set out in Article 16 of the state responsibility articles forms international customary law (p 151), and that all kinds of aid and assistance fall within the rule (p 153). There has to be a nexus between the aid and the commission of the international wrong (p158).
The Nexus Element
The formulation of the nexus element can be difficult, but Jackson concludes that there must be a substantial contribution – or material facilitation – for the illegal acts, not merely an incidental contribution. What does this mean in practice? For example, the UK has been criticised for providing substantial funding to Bahrain; the aid is said to be for the purpose of supporting the implementation of recommendations from a universal periodic review by the UN Human Rights Council. This comes at a time when Bahrain is allegedly suppressing dissent and committing human rights abuses. Is there a nexus between the aid and the alleged wrong sufficient to bring this within Article 16?
Jackson tells us that the standard of material facilitation of a wrongful act catches conduct with a sufficient link to the wrongdoing while excluding ‘incidental relationships’. Further guidance in such a case is given in a Chatham House research paper (https://www.chathamhouse.org/publication/aiding-and-assisting-challenges-armed-conflict-and-counterterrorism ) which takes the view that assisting a state in a generalised way will not necessarily breach Article 16. ‘Otherwise, it would be virtually impossible for one state lawfully to assist another state in capacity-building unless the recipient state had completely clean hands in every particular.’
The Fault Element
One of the more difficult aspects of Article 16 lies in interpreting the nature of the fault element. Having pointed to the well-known mismatch between the International Law Commission’s text of the Article (where knowledge is indicated) and the commentary (which brings in intent or purpose), Jackson concludes that the standard of knowledge is to be preferred – the text trumps the commentary. But the standard of knowledge means ‘awareness with something approaching practical certainty as to the circumstances of the principal wrongful act’ (p161). Wilful blindness is a justified extension. Jackson notes that in most situations, where the assisting state has actual knowledge that the aid will be used to commit a wrongful act, it may be inferred that the state intends its aid to facilitate that act.(p.160)
Again, how is this to be applied in practice? Many states loan bases or parts of their territory to other states for their military use. In a UK Foreign Affairs Committee report of 2010 the Committee, noting in particular ‘the use of Diego Garcia for US rendition flights without the knowledge or consent of the British Government’ considered that there must be doubts about the effectiveness of the UK’s exercise of responsibility for that territory. The Committee noted the considerable constraints on the ability of the UK Government to oversee the arrangements which govern US use of British territory and recommended a comprehensive review to improve scrutiny and oversight. An outsider is hard put to assess the knowledge of the British government of the extent of activities by the US in the absence of public information about all of the bilateral arrangements; it may be that all is as it should be. But governments which intentionally exclude themselves from knowledge of what is being done with their assistance risk being ‘wilfully blind’ and thus bearing international responsibility if other governments use their territory to commit breaches of international law.
Another example comes from the UK support for the Saudi-led intervention in Yemen. There has been criticism of this support, including from parliamentary committees, in the light of allegations of frequent breaches of international humanitarian law by the coalition in Yemen. Much of the criticism relates to continuing arms sales by the UK, where the governing law is the Arms Trade Treaty, but the UK also provides other support such as training and military liaison. The government state that they are ‘unable to form a complete understanding of the Coalition’s regard for IHL in its operations in Yemen as they do not have access to all the information required to do so; the UK does not have any embedded personnel taking part in operations, nor do we have any personnel involved in the Saudi targeting decision-making process.’ In the light of the allegations of IHL violations, is it sufficient to rely on the assisted state’s own investigative processes? Is the necessary mental element for state responsibility present if the assisting government is aware of the allegations, but believes that further investigation in the absence of concrete information is not possible and encourages the assisted state to undertake investigations where there is alleged non-compliance?
Jackson (and the Chatham House report) are of the view that international law does not yet recognise a general obligation to exercise due diligence as a condition for the provision of aid to another state. (p162). But failing to enquire into the circumstances of an assisted act may amount to wilful blindness, thereby incurring state responsibility.
There remain controversies about some of the other elements of state responsibility, including the question whether a state can be culpable for omissions in this context (Jackson includes examples that he considers should give rise to culpability) and whether the double obligation requirement should remain (Jackson argues that, rather than requiring both the assisted and the assisting state to have international obligations with which both are in breach, a rule that recognises the ‘broader community interest in compliance with international law’ would be desirable). This writer is doubtful about both of these points. But the merit of the book is such that the reader is generally left with a clear view of the content of the law: it is in the application of the law that there is the most difficulty. That Jackson’s book is proving of service to the practitioner can be seen, for example, in the references to it in the CAAT litigation referred to above. The only matter for regret, as with most monographs, is that this work is indeed a slim volume. But it is a compliment to it that it leaves the reader wanting more. Alas that we may perhaps have the need to consider the topic more frequently if the threats of international law breaches by the new US administration are carried out. It is heartening to see that the UK government seems to have given the right response in insisting that its existing guidance on non-cooperation with torture remains valid.