Preventing complicity: new guidelines

When is a State liable in international law for assisting another State to commit an international wrong?

This question – often termed the question of “complicity” – has been raised acutely by the UK’s actions abroad. Discussion of the legality of the 2003 invasion of Iraq has focussed on the legality of the invasion itself and the role of the UK and US, the main military actors. But what of the many other States which provided assistance by, for example, providing intelligence or allowing UK and US aircraft to use their air bases? Were they liable as accessories for any crimes committed by the States whom they helped? What of States which assist the US in drone strikes or the “rendition” of terror suspects? And, most recently, what of the UK’s provision to Saudi Arabia of weapons which are then used in the conflict in Yemen? A recent legal opinion obtained by Amnesty International and other human rights groups concludes that, in supplying such weapons, the UK has “actual knowledge … of the use by Saudi Arabia of weapons, including UK-supplied weapons, in attacks directed against civilians … in violation of international law.” Scrutiny of the UK’s position on arms sales to Saudi is likely to intensify in light of the weekend’s reports of a potential trade deal between the UK and the Gulf States.

Against this background, last night Chatham House held an event to launch a timely new report: Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism. The report, by Harriet Moynihan, offers clear analysis of this complex area of international law, starting from the most general provision, Article 16 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. This provides that:

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.

States cannot simply turn a blind eye to the obvious consequences of their actions.

This raises a number of difficult questions, including the causal connection between the assistance and the wrongful act, and the type of conduct which may count as assistance (for example, would an omission suffice?) The most difficult question relates to the mental element. Article 16 refers to “knowledge of the circumstances of the internationally wrongful act.” This requirement has given rise to considerable controversy, which the Report clearly analyses. What are the “circumstances”? To be liable under Article 16, does the assisting State have to know only the basic facts: for example, that it is selling weapons to a particular State? Or does it also have to know what that State intends to do with them? What if it turns a blind eye to that question: can it escape liability by simply deciding not to ask? The Report concludes that:

[W]here an assisting state has actual or near-certain knowledge that the assistance will be used for unlawful purposes by the recipient state, or where the state is wilfully blind to such knowledge, it will have the degree of knowledge specified in Article 16.

On this analysis, States cannot simply turn a blind eye to the obvious consequences of their actions. The Report considers that, while Article 16 does not in itself contain a requirement of due diligence, “If a state has not made enquiries in the face of credible evidence of present or future illegality, it may be held to have turned a blind eye.”

When it comes to the mental element, the other vexed question in interpreting Article 16 is whether it requires intent as well as knowledge. Many argue that to require additional proof of intent would set the bar too high and risk diluting the effectiveness of Article 16. However, in a solution drawn from an analysis of criminal law, the Report finds a way forward, arguing that “Knowledge or virtual certainty that the recipient state will use the assistance unlawfully is capable of satisfying the intent requirement under Article 16, whatever its desire or purpose.”

The Report goes on to analyse more specific provisions of international humanitarian law and international humanitarian law which also prohibit (arguably more effectively and enforceably: see discussion here) States from assisting other States in certain types of wrongdoing.

This should be required reading for all those involved in taking such decisions

This complex legal background does not make it easy for State to know how they should approach concrete decisions on requests for assistance by other States. The need for practical advice makes the final chapter of the Report particularly valuable. This sets out suggested good practice in terms of the decision-making process for assistance to another State. The Report suggests a number of factual and legal questions which the assisting State should be asking; gives guidance on how it should approach identifying the risks; and suggests potential strategies to reduce the risk of complicity, including attaching conditions to the provision of assistance, seeking diplomatic assurances (although the effectiveness of such assurances will depend greatly on the reliability of the regime which is giving them), vetting and training recipients of assistance, and monitoring and follow-up systems. This should be required reading for all those involved in taking such decisions on behalf of States.

These decisions tend to be taken in secret – in part for good reason, but the UK has not always done much to make clear to the public what criteria it uses when considering foreign assistance, some of which may be legally controversial and a matter of legitimate public debate. It is therefore welcome that the Report ends by considering the issue of transparency, recommending that: