The contested usefulness of Article 16 ARSIWA in comparison to
due diligence obligations: an assessment by application to the case
of the United States’ withdrawal from Syria.
Master Thesis International and European Law
Public International Law Track
Name: Robin Geraerts
Email: robin.geraerts@student.uva.nl Student number: 12721395
Date of submission: 11 January 2020 Supervisor: Mr. dr. N. Nedeski
Abstract
This thesis is aimed at contributing to the discussion on the usefulness of Article 16 ARSIWA for establishing State responsibility for complicity in comparison to obligations of due diligence. This discussion is based on the theory that in light of the stringent requirements of Article 16 ARSIWA, it will be generally more favourable to turn to obligations of due diligence in situations where responsibility for complicity is involved. This theory is tested in this thesis through application of both obligations to the conduct of the U.S. in Syria.
First, Article 16 ARSIWA and its elements are assessed and subsequently applied to the case at hand. Under this Article, it is researched whether the U.S. could be held responsible for aiding and assisting Turkey in the unlawful use of force in Syria, by withdrawing from the area of invasion. Then, the obligation of due diligence under Common Article 1 of the 1949 Geneva Conventions is researched and applied to the case of the U.S. in Syria. Here, it is researched whether the U.S. could be held responsible for the breach of Common Article 1 of the Geneva Conventions by failing to take its best efforts in preventing Turkey from committing violations of International Humanitarian Law.
After this assessment, the theory of uselessness of Article 16 ARSIWA is tested by the case of the U.S. through this previous application of both norms. It is found that, as the case of the U.S. illustrates, there are situations where Article 16 ARSIWA is still important for establishing State responsibility for complicity, even when there are obligations of due diligence applicable to the case. Article 16 ARSIWA can therefore not be deemed useless.
Key words: International Responsibility for complicity, Article 16 ARSIWA, International Humanitarian Law, Common Article 1 of the 1949 Geneva Conventions, U.S.’s withdrawal from Syria.
Table of Contents
Abstract………...2
List of Abbreviations………5
1. Introduction………..6
1.1 Aim of the research………6
1.2 Structure………..……...6
1.3 Methodology………..……7
2. Factual Background……….8
2.1 Factual Background of the U.S.’s withdrawal from Syria……….8
2.2 Areas of international law involved……….11
3. Article 16 ARSIWA………14
3.1 How is Article 16 ARSIWA important for the case at hand?...14
3.2 Elements of Article 16 ARSIWA……….14
3.2.1 The Material Element………...15
3.2.2 The Cognitive Element……….19
3.2.3 The Opposability Requirement………22
3.3 Could the United States be held responsible on the base of Article 16 ARSIWA?...23
3.3.1 The Material Element………...23
3.3.2 The Cognitive Element……….25
3.3.3 The Opposability Requirement………26
3.3.4 Concluding Remarks………26
4. Common Article 1 of the Geneva Conventions………...27
4.1 Which due diligence obligation is applicable to the case at hand?...27
4.2 The components of Common Article 1 of the Geneva Conventions………...28
4.2.1 The external component of Common Article 1………...29
4.2.2 The duty to prevent violations of IHL……….31
4.3 Could the United States be held responsible for a breach of Common Article 1 of the Geneva Conventions?...33
5. The usefulness of Article 16 ARSIWA considering obligations of due diligence.36 5.1 The discussion on the usefulness of Article 16 ARSIWA………...36
5.1.1 The stringent requirements of Article 16 ARSIWA in comparison to due diligence obligations………..37 5.1.2 Can Article 16 ARSIWA always be substituted by a due diligence
obligation?...38 5.1.3 Omissions and the requirement of an underlying duty to act………...40
5.2 Concluding Remarks………41
6. Conclusion………...42
Bibliography………...44
List of Abbreviations
ARSIWA / ASR – Articles on the Responsibility of States for Internationally Wrongful Acts
CA 1 – Common Article 1 of the 1949 Geneva Conventions
ICJ – International Court of Justice
ICRC – International Committee of the Red Cross
IHL – International Humanitarian Law
ILC – International Law Commission
SDF – Syrian Democratic Forces
UN – United Nations
UNC – Charter of the United Nations
UNSC – United Nations Security Council
1. Introduction
§1.1 Aim of the research
‘The more the merrier’ is not a motto you will often hear in the context of international responsibility. When multiple States are contributing to a wrongful act, it becomes more difficult to hold them accountable as it opens the possibility for blame shifting. One of the possibility for holding multiple States responsible for their conduct related to the same wrongful harm is Article 16 ARSIWA. This Article deals with States that aid or assist another State in committing a wrongful act and introduces the notion of complicity into the international law of State responsibility. However, the usefulness of the Article is contested considering the existence of obligations of due diligence. The argument is that since obligations of due diligence are already fit for establishing complicity of States and have less restrains in their requirements than Article 16 ARSIWA, the latter is useless given the idea that it can always be substituted by far more manageable obligations of due diligence.1 This thesis is aimed at testing this theory through the application of both norms to the conduct of the United States in Syria in connection with wrongful acts committed by Turkey.
The research question of this thesis is: “Does the theory of the uselessness of Article 16 ARSIWA considering the existence of obligations of due diligence hold true when applied to the conduct of the U.S. in Syria?”
§1.2 Structure
To answer the research question, this thesis will first set out the factual background of the U.S.’s conduct in Syria that is the object of application. In chapter 3, Article 16 ARSIWA and its elements are assessed and subsequently applied to the facts of the case. Then, in chapter 4, a second ground for international responsibility of the U.S. is assessed: Common Article 1 of the Geneva Conventions. In chapter 5, the theory of the uselessness of Article 16 ARSIWA is tested through the assessment and application of the grounds of responsibility of the previous chapters.
1 O. Corten and P. Klein, ‘The limits of complicity as a ground for responsibility: Lessons learned
from the Corfu Channel case’ in K. Bannelier, T. Christakis and S. Heathcote (eds), The ICJ and the
Evolution of International Law: The Enduring Impact of the Corfu Channel Case (Routledge, 2012),
§1.3 Methodology
This thesis is thus focused on the usefulness of Article 16 ARSIWA for establishing international responsibility for complicity. As it is concerned with legal research, the thesis is written from an internal perspective. The research uses both primary and secondary sources. The factual background of the U.S. in Syria has been compiled by information obtained from relevant news articles and legal blogs. For the assessment of Article 16 ARSIWA and Common Article 1 of the Geneva Conventions, relevant case law and the travaux préparatoires of the articles will be used. These sources are substantiated by academic legal literature.
2. Factual Background
§2.1 Factual background of the U.S.’s withdrawal from Syria
As part of the ‘war on terror’, the American-led intervention in the Syrian Civil war commenced in 2014. What started with air strikes from a far distance eventually resulted in the deployment of U.S. military forces to Syria in November 2015 under the name of ‘Operation Inherent Resolve’.2 These forces were to support the U.S.’s military partner in the fight against the Islamic State, namely the Syrian Democratic Forces (SDF). The SDF is a military alliance between Kurdish and Arab militias fighting against ISIS. The U.S. assisted the SDF with inter alia arms, ammunition, intelligence and training. It turned out the U.S. had chosen its ally wisely, as the SDF gained success in defeating ISIS in several important cities such as Baghouz and Raqqa, the latter being the self-declared capital of the Islamic State.3 Probably with these victories in mind, the president of the U.S. Donald Trump unilaterally declared on twitter in December 2018 to have ‘defeated 100% of the ISIS Caliphate’.4 He then went on to order the Pentagon to withdraw the U.S. forces from Syria. At the time of tweeting, the SDF, still entangled in a battle with ISIS for the city of Deir ez-Zor, did not immediately start to prepare for the withdrawal as the U.S. officials present in Syria ‘basically told [them] it was not going to happen’.5 And indeed, some considerable time elapsed between Trump’s tweet and the withdrawal of the U.S. troops in the end of 2019. This retreat was so sudden that the U.S. bombed their own military base in Syria, which was the most efficient means available given the little time there was, to ‘reduce the facility’s military usefulness’.6
The sudden withdrawal was prompted by Recep Tayyip Erdogan, the president of Turkey. From the start, the military alliance of the U.S. with the SDF was to Erdogan’s dismay. He declared that ‘a country we call an ally is insisting on forming a terror army on our border’.7 For a long time, the U.S. did not consider the discontent of Turkey to outweigh the victories
2 P. Baker, H. Cooper & D. Sanger, ‘Obama Sends Special Operations Forces to Help Fight ISIS in
Syria’, The New York Times, (Washington, 30 October 2015).
3 R. Mellen, ‘A brief history of the Syrian Democratic Forces, the Kurdish-led alliance that helped the
U.S. defeat the Islamic State’, The Washington Post, (Washington, 7 October 2019).
4 Donald Trump on twitter, (10 October 2019)
<https://twitter.com/realdonaldtrump/status/1182387197066039298> accessed 3 September 2020.
5 L. Mogelson, ‘America’s Abandonment of Syria’, The New Yorker, (20 April 2020). 6 Ibid.
7 P. Wintour, ‘Erdogan accuses US of planning to form ‘terror army’ in Syria’, (TheGuardian.com, 15
January 2018) <https://www.theguardian.com/world/2018/jan/15/turkey-condemns-us-plan-for-syrian-border-security-force> accessed 4 September 2020.
against ISIS. However, in August 2019 the U.S. agreed with Turkey to establish a demilitarized buffer zone in Syria next to the Turkish border. The SDF had to move ten miles deeper into Syria and in exchange, Turkey would not invade.8 Soon after, in September 2019, Erdogan declared the buffer zone inadequate and presented his plans before the United Nations General Assembly to annex a part of Syrian territory where Syrian refugees living in Turkey could be resettled. Two weeks after, the U.S. announced its withdrawal from Syria stating that ‘Turkey will soon be moving forward with its long-planned operation into northern Syria’.9
This ‘long-planned operation’ was named Operation Peace Spring and is feared worldwide to have terrible humanitarian consequences.10 In addition, it could serve the Islamic State as it is directed at the SDF, the military group which has proved most successful in combatting ISIS.11 As is apparent from the letter to the U.N. Security Council, Turkey considers the right to self-defence under Article 51 of the U.N. Charter (UNC) as the legal basis of Operation Peace Spring.12 It is difficult to see, however, how the factual background meets the requirements of Article 51 UNC. In the letter, Turkey states to be the victim of harassment fire by the SDF but the formulation is so vague that it is impossible to assess these alleged events.13 In addition, the events seem incapable of meeting the intensity threshold for a non-State armed attack and it is not clear how Turkey’s grave use of force is proportionate and necessary to the aim of countering the harassment fires.14 This means that if Turkey is not able to convincingly demonstrate that there has been an armed attack by the SDF, which seems likely in light of the above, Operation Peace Spring breaches the prohibition on the use of force of Article 2(4) UNC. In addition, there are strong implications that Turkey’s invasion is accompanied by
8 Mogelson (n 5).
9 Statement from the U.S. Press Secretary, (whitehouse.gov, 6 October 2019)
<https://www.whitehouse.gov/briefings-statements/statement-press-secretary-85/> accessed 24 September 2020.
10 C. Kreß, ‘A Collective Failure to Prevent Turkey’s Operation ‘Peace Spring’ and NATO’s Silence
on International Law’, (Blog of the European Journal of International Law, 14 October 2019) < https://www.ejiltalk.org/a-collective-failure-to-prevent-turkeys-operation-peace-spring-and-natos-silence-on-international-law/> accessed 3 September 2020.
11 Ibid.
12 UNSC S/2019/804 (9 October 2019) 13 Kreß, (n 10)
14 R. Mignot-Mahdavi, ‘Blog post: On the illegality of the Turkish offensive in Syria’, (Asser Today,
10 October 2019)< https://www.asser.nl/about-the-institute/asser-today/blog-post-on-the-illegality-of-the-turkish-offensive-in-syria/ > accessed 3 September 2020.
civilian deaths and summary executions of Kurdish fighters, which are violations of international humanitarian law.15
Trump’s actions have been criticised as constituting the ‘effective green light’ for the violations of the prohibition on the use of force and international humanitarian law.16 This criticism is not unfounded, as it seems that the U.S.’s presence in the area deterred Turkey from invading prior to the withdrawal. This is confirmed by U.S. militants on the ground, since they assured the SDF ‘as long as we’re here, Turkey will not attack you’.17 In addition, it can be questioned
whether the U.S. has done enough to deter Turkey from setting forth Operation Peace Spring. The top U.S. diplomat in Northern Syria has stated in an internal memo that Trump’s diplomacy should have been tougher, with harsher threats of economic sanctions.18 And indeed, it seems that Trump, at least publicly, was not very critical of Operation Peace Spring at its outset. After his phone call with Erdogan, he bluntly announced on Twitter that Turkey was invading Syria and that the U.S. troops would withdraw from the area. This withdrawal was even contrary to recommendations of high Pentagon and State Department officials.19 After a storm of criticism
on his decision he later added, again on his favourite forum for diplomacy, that ‘if Turkey does anything that I, in my great and unmatched wisdom, consider to be off limits, I will totally destroy and obliterate the Economy of Turkey (I’ve done before!)’.20 And even this is not a direct deterrence for Turkey to terminate its invasion, because what Trump considers ‘off limits’ is a vague and subjective standard. Sometime later, in November 2019, Trump hosted Erdogan in the White House and at a joint press conference declared that he wanted ‘to thank
15 V. Todeschini, ‘Turkey’s Operation “Peace Spring” and International Law’, (Opinio Juris, 21
October 2019) < http://opiniojuris.org/2019/10/21/turkeys-operation-peace-spring-and-international-law/> accessed 3 September 2020.
16 B. Walton and P. Strauch, ‘Three Lingering Questions about the legality of Withdrawal from Syria:
Part I – Complicity by Omission’, (Opinio Juris, 7 January 2020).
< http://opiniojuris.org/2020/01/07/three-lingering-questions-about-the-legality-of-withdrawal-from-syria-part-i-complicity-by-omission/ > accessed 21 July 2020
17 Mogelson (n 5).
18 E. Schmitt, ‘U.S. Envoy in Syria Says Not Enough Was Done to Avert Turkish Attack’, The New
York Times, (Washington, 7 November 2019).
19 K. Breuninger, ‘Trump: Others have to ‘figure the situation out’ after US announces withdrawal
from northern Syria’ (cnbc.com, 7 October 2019) < https://www.cnbc.com/2019/10/07/trump-other-countries-must-deal-with-isis-as-us-withdraws-from-northern-syria.html > accessed 4 September 2020.
20 Donald Trump on twitter, (7 October 2019)
the president [Erdogan] for the job they’ve done’.21 Trump then went on that he was sympathetic to the ‘problems’ Turkey had, which according to the president included many Turkish people being killed in north-Eastern Syria where the SDF is present.22 In light of these statements, it seems that Operation Peace Spring is not ‘off limits’ to president Trump. §2.2 Which areas of international law are involved and what specific acts and omissions are the subject of this thesis?
As explained in the introduction, this thesis will partly research whether the U.S. could be held responsible in light of its actions and/or omissions regarding the acts of Turkey in Syria. Because of the academic discussion on the usefulness of Article 16 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) in comparison to obligations of due diligence, the possible responsibility of the U.S. will be assessed in light of these two grounds. Both grounds deal with different aspects of the conduct of the U.S. and in the interest of clarity, this distinction is briefly explained in this paragraph.
As set out above, with the unlawful use of force Turkey has presumably violated jus ad bellum as laid down in Article 2(4) of the U.N. Charter. In addition, there are strong implications that this unlawful use of force was accompanied with violations of jus in bello, that is International Humanitarian Law (IHL).
The first ground of international responsibility that is assessed is Article 16 ARSIWA. Under this Article, States that aid or assist other States in committing an internationally wrongful act can be held responsible. This thesis will firstly examine the international responsibility of the U.S. for its assistance in Turkey’s unlawful use of force. The conduct of the U.S. assessed in light of this Article consists of those acts and omissions that made it easier for Turkey to pursue the invasion into Syria. This conduct mostly consists of the sudden withdrawal and its circumstances by the U.S. from the area that Turkey invaded with its Operation Peace Spring.
21 J. Borger, ‘Trump contradicts aides and says troops in Syria ‘only for oil’’, (TheGuardian.com, 13
November 2019) < https://www.theguardian.com/us-news/2019/nov/13/donald-trump-syria-oil-us-troops-isis-turkey> accessed 4 September 2020.
While the ground for responsibility under the law of international state responsibility is thus linked to the framework of jus ad bellum, it is difficult to find a due diligence obligation related to the use of force that lends itself for the situation of the U.S. and Turkey. The prime example of a due diligence obligation in the area of the use of force is Article 3(f) of the Definition of Aggression, which holds that a State cannot place its territory at the disposal of another State to be used for an act of aggression against another State.23 This obligation is thus limited to territory and therefore not suitable for the case of the U.S.’s withdrawal from the territory of Syria. The amount of control the U.S. had over the territory and airspace in question is unlikely to meet the threshold of control required for this due diligence obligation.24 A general
obligation to prevent another State of using force might be construed from general principles of international law and General Assembly resolutions such as the Declaration of Friendly Relations and Resolution 57/337 that deal with the prevention of armed conflict. Being instruments of soft law, however, the legal status of such an obligation of prevention is not set in stone.
For the ground of international responsibility on the base of a due diligence obligation, the attention is then turned to the framework of the jus in bello of IHL. Under Common Article 1 of the Geneva Conventions (CA 1), third States that are not a party to the conflict have the duty to ensure that States that are party to the conflict respect the rules of IHL.25 Since the U.S. is not a party to the conflict between Turkey and Syria, and Turkey has allegedly violated IHL, it will be assessed whether the U.S. has breached this due diligence obligation to ensure respect by Turkey for the rules of IHL. As this is an obligation of conduct and not of result26, the conduct of the U.S. that is important here are the measures it has taken to ensure Turkey’s compliance with IHL and whether these measures were the maximum of what the U.S. could have done in the situation. As set out above, President Trump issued some threats directed at Turkey on Twitter and sent a letter to Erdogan likewise containing threats.27 Apart from this, however, it seems that the U.S. did not do much more to ensure that Turkey would not violate IHL.
23 UNGA Res 3314 (XXIX) (14 December 1974). 24 Walton and Strauch (n 16).
25 Common Article 1 of the 1949 Geneva Conventions.
26 ICRC, Commentary of 2016 Article 1: Respect for the Convention, para. 202. 27 V. Ho, ‘Donald Trump’s bizarre, threatening letter to Erdogan: ‘Don’t be a fool’’,
(TheGuardian.com, 17 October 2019) < https://www.theguardian.com/us-news/2019/oct/16/trump-letter-erdogan-turkey-invasion> accessed 28 October 2020.
Both grounds that will be assessed in the next chapters thus pertain to different aspects of the situation in Syria. Article 16 ARSIWA deals with the unlawful use of force and the aid or assistance granted by the U.S. to Turkey in this regard. The due diligence obligation is based on Turkey’s alleged violations of IHL and whether the measures taken by the U.S. are sufficient to meet the obligation under CA 1 of the Geneva Conventions.
3. Article 16 ARSIWA
§3.1 How is Article 16 ARSIWA important for the case at hand? This chapter assesses whether the U.S. could be held responsible for aiding and assisting
Turkey in the unlawful use of force by invading Syria. As set out above, the behaviour of the U.S. that is important in this regard consists mostly of the sudden withdrawal from the area. There are implications that this withdrawal has served as the ‘effective green light’ for Turkey’s unlawful use of force, as the removal of U.S. militants from the area seemingly enabled Turkey to go ahead with its Operation Peace Spring.28 In this light, it seems that the U.S. has assisted
Turkey in committing an internationally wrongful act, which could lead to international responsibility under Article 16 ARSIWA. Whether this indeed could be the case, is assessed in this chapter.
The first paragraphs will set out Article 16 ARSIWA and its elements. Particular attention is paid to the question whether omissions also fall within the ambit of the Article. This is because the conduct of the U.S. that is important for the Article seems to qualify as an omission: by withdrawing from the area the U.S. failed to prevent the internationally wrongful act.29 This is elaborated on in the last paragraph, where the legal assessment will be applied to the case of the U.S.’s withdrawal from Syria.
§3.2 Elements of Article 16 ARSIWA
The general Article for complicity in the ARSIWA is Article 16, which reads as follows: Article 16 - Aid or assistance in the commission of an internationally wrongful act 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.
28 Walton and Strauch (n 16). 29 Ibid.
The Article contains several elements and requirements that have to be met for international responsibility for aid and assistance to rise.
The first requirement, ‘the material element’30, is not explicitly mentioned in the Article but flows from its commentary. The element is twofold: it is concerned with the form of the aid and assistance and it requires that the aid or assistance is ‘clearly linked to the subsequent wrongful conduct’.31 The second element is the knowledge requirement and can be termed as ‘the cognitive element’.32 This element is set out in Article 16(a) ARSIWA: the assisting State
has to provide its assistance ‘with the knowledge of the circumstances of the internationally wrongful act’. Since the ILC commentaries are silent on the matter, the question remains what standard of knowledge is required under the element.33 Lastly, Article 16 ARSIWA contains an ‘opposability requirement’, which means that the assisting State is required to be under the same obligation that is breached by the principal State.34 The requirements are more extensively assessed in the next paragraphs.
§3.2.1 The Material element
As set out above, the material element is concerned with the form of assistance and its link to the principal wrongful act. First, paragraph 2.2.1.1 deals with the question of what forms of aid and assistance fall within the ambit of the Article: does it include positive acts as well as omissions? Then, paragraph 2.2.1.2 deals with the required link between the principal wrongful act and the aid and assistance.
§ 3.2.1.1 Do positive acts and omissions both fall within the ambit of Article 16 ASR?
Article 16 ASR contains the terms ‘aiding and assisting’ and both are used in literature. However, there is generally no difference between the terms and they can therefore be used synonymously.35 Furthermore, the terms are not defined by Article 16 ASR or in the
30 V. Lanovoy, ‘Complicity’ [2015], MPEPIL, p. 4.
31 ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
Commentaries’ (2001) 2 (pt 2) YBILC 31 (ARSIWA), p. 66, para 5 (Art 16 Commentary
32 Lanovoy (n 30), p. 5. 33 Ibid.
34 ARSIWA (n 31) 66, para 6 (Art 16 Commentary).
35 H. Moynihan, ‘Aiding and Assisting: The Mental Element under Article 16 of the International Law
commentaries to the ARSIWA. They could therefore be understood as to encompass a wide range of activities, with no qualification of form and nature.36
Disputed still, however, is whether omissions also fall within the ambit of Article 16 ASR. The ICJ has ruled in the Bosnia Genocide case that aid and assistance is limited to positive action and that omissions lead to the breach of due diligence obligations.37 The difficulty, however, with applying the Bosnia Genocide case analogous to other situations where Article 16 ASR could come into play, lies in the fact that in that case the ICJ was dealing with the specific crime of genocide. It is unclear whether the Court sought to devise a general requirement for situations of complicity or whether the standards are solely applicable to complicity in the crime of genocide.38 The former seems untenable, as the case centred around the Genocide Convention, which does not contain such a general concept of complicity for international law.39 To ground a uniform notion of complicity on the Convention thus seems problematic, since complicity is a general term that encompasses various forms of participation in another offence.40 Therefore, the exact requirements depend on the type of complicity involved.41 In
this light, it is difficult to see how the application of complicity to the crime of genocide by the ICJ could set general standards for other situations that are concerned with complicity. In addition, it is unclear where this limitation of Article 16 ASR comes from, as the International Law Commission’s (ILC) commentaries to the Article are silent on the matter. This silence can be interpreted in two ways: either the issue did not catch the attention of the ILC or it saw no reason to depart from the general rule of Article 2 ARSIWA, which holds that an internationally wrongful act can consist of an action or an omission.42 Understanding Article 16 ASR as to encompass omissions would thus benefit the uniformity of the ARSIWA.
36 V. Lanovoy, Complicity and its Limits in the Law of International Responsibility (1st edn, Hart
Publishing 2016) p. 95.
37 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia Herzegovina v Serbia and Montenegro) (Mertis) [2007] ICJ Rep 43, para 432.
38 V. Lanovoy,’Responsibility for Complicity in an Internationally Wrongful Act: Revisiting a
Structural Norm’ (SHARES Conference – Foundations of Shared Responsibility in International Law, Amsterdam, 17, 18 November 2011), p. 12.
39 M. Milanovic, ‘State Responsibility for Genocide: A Follow-up’ (2007) EJIL Vol. 18 no 4, p. 681. 40 Ibid., p. 682.
41 Ibid.
42 H.P. Aust, Complicity and the Law of State Responsibility (2nd edn, Cambridge University Press
It is unclear in what circumstances exactly complicity by omission could give rise to international responsibility under Article 16 ASR. The question remains whether there should be an underlying duty for the assisting State to act. This is the conception in general international criminal and domestic law: responsibility for omission is dependent on the existence of an obligation to act.43 The commentaries to the ARSIWA could potentially be read as confirming this idea, since the ILC holds that an internationally wrongful act could consist of omissions and then adds the example of a State failing to take the appropriate steps ‘where such steps were evidently called for’.44 It is not clear whether this goes as far as requiring a
pre-existing duty to act incumbent on the State in question, but it does seem a step into this direction. Some authors thus hold that for responsibility to arise under Article 16 ASR for omissions, it is likely that the assisting State must be in breach of a separate obligation to act.45 Should this be the case, however, the question arises what the added value of the Article is, since the State will already be in breach of a separate obligation and thus responsible for its omission under this primary obligation.46 Since a duty to act will generally be an obligation of due diligence, the discussion then pertains to the usefulness of responsibility for omissions under Article 16 ASR in comparison to responsibility for the breach of an obligation of due diligence.47 This discussion is further assessed in chapter 5 of this thesis.
Another view is that the qualification of an omission as assistance under Article 16 ASR does not solely depend on whether or not there is an underlying duty to act, but more on whether and to what extent the other requirements of the complicity rule are fulfilled.48 It is argued that in the case of ‘particularly culpable omissions that contribute significantly to the commission of the harm’, they will be drawn into the ambit of Article 16 because of this facilitation of the principal wrongful act.49 If the assisting State then also has the knowledge of the wrongfulness of the principal act, which is another element of the Article and is dealt with in §3.2.3, there is no clear reason to the deny its responsibility for the omission in question because there is no clear underlying duty to act.
43 L. Berster, ‘Duty to Act and Commission by Omission in International Criminal Law’ (2010) 10
Int’l Crim L Rev 619, p. 4.
44 ARSIWA (n 31) 35, para 4 (Art 2 Commentary). 45 Aust (n 42), p. 228.
46 Ibid.
47 M. Jackson, Complicity in International Law (1st edn, Oxford University Press 2015) , p. 157. 48 Lanovoy (n 38), p. 15.
Whether the existence of an underlying duty to act is required for an omission to fall within the ambit of Article 16 ASR, can thus not be concluded with certainty as there is no consensus. It seems that in some cases the other elements of the Article could carry more weight in establishing whether a State wrongfully assisted another State, than the distinction between positive acts and omissions. In these cases, the qualification of aid and assistance then depends more on whether the other elements of the Article are strongly met and thus clearly pull the omission within the ambit of complicity under Article 16 ARSIWA.50
§ 3.2.1.2 Substantial link
The material element is also concerned with the connection between the assistance and the principal wrongful act. Clear is that the aid or assistance must facilitate the commission of the wrongful act: required is a substantial link between the assistance and the principal wrongful act.51 Further in the commentaries, the ILC states that it is not necessary that the aid or assistance is essential for the commission of the principal wrongful act but it should have contributed significantly.52 What significantly precisely entails is not explained. The ILC then also notes that it is possible to incur responsibility for aiding and assisting when ‘the assistance may have been only an incidental factor in the commission of the primary act’.53 The commentaries thus lead to the conclusion that there should be a substantial link and a significant contribution, but the assistance may also just be an incidental factor. All in all, quite confusing. A few clarifying remarks can be made. The Article does not seem to amount to a ‘but-for’ test or one of conditio sine qua non: if this were the case, the assisting State would rather be a co-author of the principal wrongful act.54 Furthermore, assistance that is too remote from the wrongful act is not sufficient to amount to responsibility for the assisting State.55 This refers to the idea that the aid or assistance must make a difference for the principal perpetrator.56 The assistance should have materially facilitated the commission of the wrongful act, which means
50 Lanovoy (n 38), p. 15.
51 ARSIWA (n 31) 66, para 5 (Art 16 Commentary). 52 Ibid.
53 ARSIWA (n 31) 67, para 10 (Art 16 Commentary). 54 Aust (n 42), p. 213.
55 Lanovoy (n 30), p. 4. 56 Aust (n 42), p. 217.
that there should be a sufficient link between the two.57 This link then hints at a causal relationship between the assistance and the principal harm.58
It is therefore likely that the threshold for aid and assistance lies somewhere between assistance that is too significant for the commission of the wrongful act and assistance that is too incidental and indirect, and will vary depending on the facts of the case.59 In every case, required is a ‘special nexus’60 between the aid and the wrongful act. This interpretation of the Article leaves room for day-to-day international cooperation between States when there is no clear indication of wrongfulness and is thus preferable from the States’ point of view.61
§ 3.2.2 The Cognitive element
The cognitive element of Article 16 ARSIWA entails that the assisting State must have ‘knowledge of the circumstances of the internationally wrongful act’.62 It is not clear, however, what this ‘knowledge’ precisely means. The starting point for the ILC is that States may in general presume that their aid or assistance will be used for lawful means: the assisting State will bear no responsibility if it is unaware of the unlawful circumstances in which its aid is used by another State.63 The commentaries to Article 16 ARSIWA furthermore state that the Article applies to situations where the assisting State has the ‘view to facilitating the commission of an internationally wrongful act’.64
The commentaries thus seem to introduce a subjective element of fault, one which is absent from the wording of Article 16 ARSIWA itself. While the Article requires ‘knowledge of the circumstances’, the phrase ‘with a view to facilitate’ suggests that the assisting State must have the intent of the principal harm occurring. This seems an aggravation, but in practice there may
57 Jackson (n 47), p. 158.
58 A. Boivin, ‘Complicity and beyond: International Law and the transfer of small arms and light
weapons’ (2005) 87 Int’l Rev. Red Cross 467, p. 471.
59 H. Moynihan, ‘Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism’ (2016),
Chatham House Research Paper 11/2016
< https://www.chathamhouse.org/sites/default/files/publications/research/2016-11-11-aiding-assisting-challenges-armed-conflict-moynihan.pdf> accessed on 12 September 2020, p. 10.
60 G. Nolte & H.P. Aust, ‘Equivocal Helpers – Complicit States, Mixed Messages and International
Law’ (2009), ICLQ vol 58, p. 11.
61 Ibid., p. 12.
62 Article 16 ARSIWA.
63 ARSIWA, (n 31) 66, para 4 (Art 16 Commentary). 64 ARSIWA (n 31) 66, para 1 (Art 16 Commentary).
not be a great difference between the two situations. Under criminal law, the notion of conditional intent, dolus eventualis, holds that when one knowingly accepts the foreseeable consequences of their actions, one has the intention of those consequences occurring.65 If this notion is applied to situations under Article 16 ARSIWA, the reasoning is as follows: when the assisting State has knowledge of the circumstances of the wrongfulness of the principal act and it still decides to grant the assistance, the State has the intent of its aid being used for the wrongful act and consequently the intent of the wrongful act occurring.66 Or as Crawford formulates it: ‘if aid is given with certain or near-certain knowledge as to the outcome, intent may be imputed’.67 In light of this analysis, it thus seems that the commentaries to Article 16
ASR do not generate a standard of intent, but one of actual knowledge of the circumstances making the principal act wrongful.
Whether this actual knowledge of the circumstances then also requires the awareness of the intent of the other State to commit an internationally wrongful act, depends on the primary obligation that is breached.68 This follows from the general legal framework of international
responsibility. Under Article 2 ARSIWA, there is in principle no element of intent required: an attributable breach of an international obligation constitutes an international wrongful act.69 The commentaries to this Article add that there may be an additional requirement of subjectivity, when the content of the primary obligation in question demands it.70 Regarding Article 16 ARSIWA, this idea is confirmed by the ICJ’s ruling in the Bosnia Genocide case. In this case, the Court held that Serbia would be complicit in the genocide if it ‘acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator’.71 This awareness of intent is derivative from the crime of genocide, which specifically requires intent on the part of the offender.72 The standard of knowledge required under Article 16 ARSIWA is thus case-specific as it corresponds with the primary obligation breached.73
65 See for example the Dutch case: Hoge Raad, 29 May 2018, ECLI:NL:HR:2018:718 (Aanmerkelijke
kans bij voorwaardelijk opzet) and the U.S. case: 526 U.S. 1 (1999) Holloway v. United States.
66 Jackson (n 47), p. 160.
67 J. Crawford, State Responsibility: The General Part (Cambridge, CUP, 2013) p. 408. 68 Lanovoy (n 36), p. 100.
69 Article 2 ARSIWA.
70 ARSIWA (n 31) 34, para 3 (Article 2 Commentary). 71 Bosnia Genocide (Merits) (n 37), para. 421.
72 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, Article 2. 73 Lanovoy (n 30), p. 5.
When this additional subjective element is not present in the primary obligation, it seems that existence of actual knowledge on the part of the assisting State of the illegality of the principal act will pass the test under Article 16 ARSIWA.74 This standard is desirable from a State cooperation perspective: a low threshold might discourage States to engage in normal cooperation.75 In addition, it relates to the general notion that underlies Article 16 ASR: to ascribe responsibility ‘for behaviour which is per se not unlawful’.76 This high threshold thus seems desirable, since it clearly gives the behaviour an unlawful element.
On the other hand, the threshold of actual knowledge could be problematic, as it may be extremely difficult for an injured State to prove there was actual knowledge on the side of the assisting State. In addition, the standard may not be suitable for all cases, as ‘wilfully blind’ States could escape responsibility merely because they deliberately avoid obtaining the actual knowledge of the illegality of the principal act. 77 In these cases, a standard of constructive knowledge seems desirable. Under this standard the assisting State is presumed to have the knowledge of the illegality, when there is credible evidence of it in the public domain.78 This standard should be applied with due care as it may be difficult to measure whether the information was in fact available to the assisting State.79 But when there are strong implications that a State is deliberately avoiding obtaining the knowledge of the known illegality, the standard of constructive knowledge may be an outcome for preventing wilfully-blind States to escape responsibility.80
It can thus be concluded that the degree of knowledge required under Article 16 ARSIWA may vary on a case-by-case basis. In some cases, the primary obligation requires a specific standard of knowledge, and in other cases it may be deemed suitable to lower the threshold a bit. It seems that when there are no such implications, actual knowledge of the circumstances of the wrongfulness on the part of the assisting State will pass the test of the cognitive element of Article 16 ASR.
74 Lanovoy (n 36), p. 100. 75 Nolte and Aust (n 60), p. 16. 76 Aust (n 42), p. 238.
77 Moynihan (n 35), p. 7. 78 Moynihan (n 59), p. 462. 79 Ibid.
§ 3.2.3 The Opposability requirement
The opposability requirement follows from Article 16 paragraph b ARSIWA which states that ‘the act would be internationally wrongful if committed by [the assisting] State’. This entails that the assisting State has to be bound by the obligation that the assisted State is breaching. The rationale behind this, as noted by the ILC, is that: ‘a State cannot do by another what it cannot do by itself’.81 This requirement is a direct consequence of the pacta tertiis rule which entails that an agreement between two States cannot create obligations for a third State without its consent.82 In the sphere of Article 16 ASR this translates to the idea that the assisting State
can act against an obligation between two other States, as it is not bound by it.83
Special Rapporteur Crawford held that this requirement was necessary for Article 16 ASR to remain a secondary norm and to not become a primary norm of conduct.84 However, the requirement did not pass without critique of other members of the ILC. The idea was that this requirement unnecessarily limited the scope of Article 16, as it is ‘most unlikely that a State would knowingly and deliberately help another State to breach its bilateral or multilateral obligations’.85 In addition, the requirement of opposability underlines the idea of reciprocity and it is not entirely clear whether this notion still suits modern international law.86 A rule that embraces the idea of common interest and the stability of international relations seems more appropriate.87 The opposability requirement also excludes the possibility of further development of the norm to include wrongdoings by other entities than States that are often not bound by the same norms.88
There are thus questions as to whether the opposability requirement is desirable in the context of complicity. Be that as it may, the requirement in Article 16 ASR is clear that it requires the assisting State to be bound by the norm the assisted State is breaching.
81 ARSIWA (n 31) 66, para 6 (Art 16 Commentary). 82 Vienna Convention on the Law of Treaties, Article 34. 83 ARSIWA (n 31) 66, para 6 (Art 16 Commentary).
84 Crawford, second report on state responsibility, 50-51, paras. 183-186.
85 ILC summary record of the 2577th meeting (26 May 1999), para 5 (Economides). 86 Lanovoy (n 38), p. 31.
87 Jackson (n 47), p. 166-167. 88 Lanovoy (n 38), p. 31.
§3.3 Could the United States be held responsible on the base of Article 16 ARISWA?
In this paragraph, it is assessed whether the U.S. could potentially be held responsible under Article 16 ARSIWA for aiding and assisting Turkey in committing the internationally wrongful act of the unlawful use of force. The elements of Article 16 ARSIWA as set out above are applied to the facts of the case at hand and it will be assessed whether these elements are met. §3.3.1 The material element
Starting with the material element, it has to be assessed whether the conduct of the U.S. in question could qualify as aid or assistance under Article 16 ARSIWA and if so, whether there is a substantial link between the aid and the principal wrongful act.
The conduct in question primarily consists of the withdrawal by the U.S. from the area. The difficulty here is that the withdrawal by the U.S. is arguably an omission when it comes to serving as aid or assistance to Turkey’s wrongful act. It does not actively contribute to the use of force by Turkey, but seemingly enables Turkey to proceed with its operation by withdrawing from the area and by that failing to stop or prevent the unlawful use of force. As set out in paragraph 3.2.1.1, it is still under debate whether and when an omission could qualify as aid or assistance under Article 16 ASR. One view is that for this purpose an omission requires a pre-existing duty to act. For the case of the U.S., this requirement would run into some difficulty. Related to the use of force, an important duty to act flows from Article 3(f) of the Definition of Aggression that prevents States from placing their territory at the disposal of another aggressor State.89 The level of control that the U.S. had in the area is probably not enough to meet the test required by this Article, and it is therefore unlikely that a pre-existing duty to act for the U.S. can be derived from it.90 A pre-existing duty, however, need not be one to prevent the principal wrongful act which means that in this case it could also flow, for example, from a formal agreement between the U.S. and the SDF.91 It is not entirely clear whether such an agreement existed. When U.S. government officials are asked about the withdrawal from Syria, they often speak of a ‘green-light’ for Turkey’s invasion which ‘was a betrayal of one of [their] best partners in the global war on terrorists’.92 In the U.S. House of Representatives, nearly all
89 UNGA Res 3314 (XXIX) (14 December 1974). 90 Walton and Strauch (n 16).
91 Aust (n 42), p. 228.
92 U. Friedmann, ‘What America’s Allies Really Think About Trump’s Syria Decision’, The Atlantic,
Democrats and 129 Republicans criticized Trump for not taking the best efforts to prevent Turkey’s use of force in the area of withdrawal, which would have damaged the U.S.’s reputation to the extent that no other entity would want to be its ally.93 Senator Lindsey of North Carolina even accused Trump of having ‘shamelessly abandoned’ the Kurds.94 While these are statements made to the media or during a press conference and are in that sense not clear evidence of an existing formal agreement between the U.S. and the SDF, the general attitude seems to be that the U.S. at least had some obligation towards the SDF. Whether this would amount to a pre-existing duty to act for the U.S. needs more research and evidence, but in light of this information it does not seem entirely impossible.
Another view is that a pre-existing duty is not the decisive factor in determining whether an omission could qualify as aid or assistance under Article 16 ARSIWA. When there is a clear sufficient link between the omission and the principal wrongful act, and the assisting State has knowledge of the wrongfulness, the omission could fall within the Article because these circumstances require it.95 As set out in §3.2.1.2, the substantial link requires some causality
between the aid and assistance and the principal wrongful act. The aid must contribute to the wrongful act in a way that makes it easier for the assisted State to commit the wrongful act.96 In this case, the question is thus whether the withdrawal by the U.S. made it easier for Turkey to commit the wrongful act of the unlawful use of force and whether there is therefore a substantial link between the two. It is difficult to assess with certainty, but there are implications that the withdrawal by the U.S. has made it materially easier for Turkey to go ahead with its Operation Peace Spring. To begin with, it seems that the presence of the U.S. had deterred Turkey from invading the area in the years before the withdrawal. In an interview Mazloum Abdi, the general commander of the SDF, reveals that he was told by several U.S. militants on the ground that as long as they were there, Turkey would not attack the SDF. 97 This is confirmed by the U.S. top diplomat in Syria, William Roebuck. In an internal memo, he states that he told the SDF, based on Washington’s guidance, that a Turkish invasion like the one in Afrin under Operation Olive Branch, could not happen in the northeast because of
93 Ibid.
94 B. Hubbard and C. Gall, ‘Turkey Launches Offensive Against U.S.-Backed Syrian Militia’, The
New York Times, (Beirut, 9 October 2019)
95 Lanovoy (n 38), p. 15. 96 Aust (n 42), p. 217. 97 Mogelson (n 5).
the presence of the U.S. in this area.98 This view is supported by other U.S. officials. For example, Senator Murphy held that ‘everyone knows that the only thing that stopped Erdogan from moving in was the fact that he was going to rub up against American troops’.99 The consequence of the idea that the presence of the U.S. deterred Turkey from invading the area is then that the withdrawal has functioned as the effective greenlight for the invasion.100 As Joseph Votel, a former general of the U.S. army, notes, the shift in policy of the U.S. by suddenly withdrawing from the area has been taken by Turkey ‘to signal a green light for an attack in the northeast’.101 While this narrative is by other U.S. officials held to be ‘erroneous’
and ‘false’, it is even admitted by these contradictors that it is the current perception in the world that the withdrawal functioned as a green light for Turkey’s unlawful use of force.102 It is difficult to assess and measure with certainty whether the presence of the U.S.’s indeed would have deterred Turkey from invading the area, but the information set out above does point in this direction. It is therefore plausible that the withdrawal by the U.S. indeed has made it easier for Turkey to invade the area by unlawful use of force. The substantial link then lies in the conception that the withdrawal of the U.S. gave free rein to Turkey in the area in question, which Turkey would not have invaded if the U.S. was still present. This connection between the withdrawal and invasion could very well draw the omission within the ambit of Article 16 ARSIWA. Because the withdrawal facilitated the unlawful use of force by Turkey to a certain extent, it seems counterintuitive to hold that the withdrawal cannot be qualified as aid or assistance merely because it is an omission. And even if there is no pre-existing duty to act of the U.S. applicable to the case, it seems that the substantial link between the withdrawal and the ultimate wrongful act makes Article 16 ARSIWA applicable to the omission and that the material element of the Article is thus met. This is even more so if it is found that the U.S. had knowledge of the wrongfulness of the circumstances, a requirement that is dealt with in the next paragraph.
§3.3.2 The cognitive element
Secondly, as set out in §3.2.3, Article 16 ARSIWA contains a cognitive element. This element entails that the assisting State should have knowledge of the circumstances of the wrongful act
98 W. Roebuck, ‘Present at the Catastrophe: Standing by as Turks Cleanse Kurds in Northern Syria
and De-Stabilize our D-ISIS Platform in the Northeast’, The New York Times, (7 November 2019).
99 Friedmann (n 92).
100 Walton and Strauch (n 16).
101 J. Votel and E. Dent, ‘The Danger of Abandoning Our Partners’, The Atlantic, (8 October 2019). 102 Friedmann (n 92).
by the assisted State. As assessed above, it seems that when there is no implication that the primary obligation in question warrants a specific standard of knowledge, the assisting State must have actual knowledge of the wrongfulness of the primary act. In this case, it seems that the U.S. had this actual knowledge. First, as was apparent from Twitter, president Trump was aware of Turkey’s plan to invade Syria before withdrawing from the area. In addition, Turkey presented its plan of use of force to the Security Council of the U.N. (SC), where the U.S. holds a permanent seat. In this letter Turkey holds self-defence under Article 51 UNC as the legal basis of its use of force.103 Since the threshold of self-defence was clearly not met, the illegality
of Turkey’s operation was clear from its outset.104
It can thus be concluded that the U.S. had actual knowledge of the circumstances of the wrongful act and that the cognitive element of Article 16 ARSIWA is met.
§3.3.3 The opposability requirement
Lastly, the opposability requirement of Article 16 ARSIWA requires that the assisting State is under the same obligation that the assisted State has breached. This requirement runs into little trouble here, since it is clear that the U.S., a member of the U.N., is bound by the prohibition on the use of force under Article 2(4) of the U.N. Charter.
§3.3.4 Concluding remarks
In light of the assessment made in this paragraph, it seems that the U.S. could potentially be held internationally responsible for aiding and assisting Turkey in the unlawful use of force by withdrawing from the area. The difficulty here primarily lies in the fact that the withdrawal generally sounds in omission and that there is no consensus on whether and when an omission could fall within the ambit of Article 16 ARSIWA. It is argued here that because of the existing substantial link between the withdrawal and the use of force and in light of the fact that the U.S. had actual knowledge of the wrongfulness of the use of force, the omission of the withdrawal qualifies as aid or assistance under Article 16 ASR. With the opposability requirement also met, the U.S. could potentially be held responsible under Article 16 ARSIWA for the withdrawal from Syria as it aided Turkey in committing the international wrongful act of unlawful use of force.
103 See note 12. 104 Kress (n 10).
4. Common Article 1 of the Geneva Conventions
§4.1 Which due diligence obligation is applicable to the case at hand?
In this chapter, it will be assessed whether the U.S. could be held internationally responsible in light of a breach of a due diligence obligation. The term ‘due diligence’ usually entails acting with careful consideration of all the circumstances, in order to avoid an undesirable result.105 Common Article 1 (CA 1) of the Geneva Conventions contains such a due diligence obligation. As will be set out in the paragraphs below, under CA 1 States that are not a party to an armed conflict have the duty to ensure respect for the rules of international humanitarian law (IHL) by States that are a party to the armed conflict. This duty could be applicable to the case at hand, as Turkey has been a party to the conflict in Syria since its military intervention during the Operation Euphrates Shield in 2016.106 There are strong implications that the latest intervention of Operation Peace Spring has been accompanied by violations of IHL, such as the principle of distinction and the prohibition of summary executions.107 Given the involvement of the U.S. in the whole situation, it seems interesting to assess whether the U.S. was under the obligation to prevent these violations by Turkey and if so, whether the U.S. is in breach of this obligation.
In this chapter, the obligation to ensure respect of IHL under CA 1 will first be assessed. The external component of CA 1 is still somewhat contested and therefore warrants legal analysis. Furthermore, it will be assessed whether this external component includes the obligation to prevent violations of IHL. In the last paragraph, this legal framework is applied to the case of the U.S. in Syria and it is researched whether the U.S. could potentially be held responsible for breaching CA 1 of the Geneva Conventions.
105 N. McDonald, ‘The role of due diligence in international law’ (2019), ICLQ vol 68 1041, p. 1042. 106 C. Kasapoglu, ‘Operation Euphrates Shield: Progress and Scope’, (Aljazeera.com, 3 February
2017) < https://www.aljazeera.com/opinions/2017/2/3/operation-euphrates-shield-progress-and-scope
> accessed 3 December 2020.
107 Spokesperson for the UN High Commissioner for Human Rights, ‘Press briefing note on Syria’, 15
October 2019
<https://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25145&LangID=E> accessed 26 October 2020.
§4.2 The components of Common Article 1 of the Geneva Conventions
IHL encompasses rules that are applicable to armed conflicts. In its advisory opinion in Nuclear Weapons, the ICJ held international humanitarian law to consist of ‘The Hague Law’ and ‘Geneva Law’, as these branches of law ‘have gradually formed one single system’.108 The Geneva Law consists of four conventions, that seek to protect those who are no (longer) part of the armed conflict, such as civilians, the wounded, sick or captured. The four Geneva Conventions have the common Article 1 (CA 1), which reads as follows:
‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’.
The obligation under CA 1 to respect IHL entails that States are required to ensure that their organs act in compliance with the conventions.109 In addition, CA 1 establishes the obligation to ‘ensure respect’. This obligation has an internal and external component. The internal component holds that States must ensure that the conventions are respected at all times, not only by its organs but also by its population.110 The external component entails the obligation for third States, that are not a party to the armed conflict, to ensure compliance with the Geneva Conventions by the States that are parties to the conflict.111 This external component, however, is still somewhat contested.
108 ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226,
para. 75.
109 K. Dörmann and J. Serralvo, ‘Common Article 1 to the Geneva Conventions and the obligation to
prevent international humanitarian law violations’ (2014), International Review of the Red Cross 96 (895/896) 707, p.708.
110 Ibid., p. 709. 111 Ibid.
§4.2.1 The external component of Common Article 1
In its Advisory Opinion in the Wall case, the ICJ held many rules of IHL to be of ‘an erga omnes character’.112 Because of this character, there is a legal interest for all States to react to violations of these rules.113 The Court went on to state that ‘ensure respect’ in CA 1 entails that every State party to the Geneva Conventions, whether or not it is involved in an armed conflict, has the obligation to ensure that the obligations under the Conventions are complied with.114 Related to the specific situation of the Advisory Opinion, the ICJ further held that all States party to the Geneva Convention had the obligation of ensuring compliance by Israel, thus another State, with the rules of IHL.115
Opponents of this ‘remarkable legal experimentation’116 note that it is hardly possible, given the historical context, that CA 1 was meant to include an international relations concept when it was clearly referring to the domestic level.117 The travaux preparatoires of CA 1 would reveal that the Article was ‘intended to ensure respect of the conventions by the population as a whole’.118 In addition, it is argued that governments were not aware of such a reading of the
words ‘ensure respect’, as this is in no way apparent from the records of the Diplomatic Conferences.119 It was further noticed by Judge Kooijmans in his separate opinion in the Wall case, that the extensive interpretation of CA 1 by the Court was doubtful as a matter of positive law, given the fact that there were no arguments provided for the reasoning.120 Judge Kooijmans also found it difficult to see what positive action, apart from diplomatic measures, third States were expected to take under CA 1.121
112 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep 136, para. 157.
113 C. Kreß, ‘The International Court of Justice and the law of Armed Conflicts’ in C. Tams and J.
Sloan (eds), The Development of International Law by the International Court of Justice (OUP, 2013), p. 277.
114 Wall (n 112), para. 158. 115 Ibid., para. 159.
116 Kreß (n 113), p. 281.
117 F. Kalshoven, ‘The Undertaking to Respect and Ensure Respect in All Circumstances: from Tiny
Seed to the Ripening Fruit’ in F. Kalshoven, Reflections on the Law of War: Collected Essays (Martinus Nijhoff Publishers, 2007), p. 677.
118 See Wall (n 112), Separate Opinion of Judge Kooijmans, p. 233. 119 Kalshoven (n 117), p. 692.
120 Kooijmans (n 118), p. 234. 121 Ibid.
Notwithstanding the arguments above, it seems that the prevailing view remains that CA 1 encompasses the duty of third States to actively ensure respect by parties to an armed conflict. Denying such a duty seems to run counter to the whole system of the Geneva Conventions, which was established for the protection of humanity as they arose against the background of the atrocities of the two world wars.122 Together with the object and purpose of the conventions of averting violations of their provisions, it seems logical to hold CA 1 as establishing a duty for States to ensure respect of IHL by all other actors.
If read differently than the opponents of the extensive interpretation, it can be noted that the ICRC has endorsed the duty to ensure respect for IHL by other States in the travaux préparatoires. In its commentaries to the aspect of ‘ensure respect’ in CA 1, the ICRC held that it was not sufficient for effective protection that States merely confined themselves under the conventions: ‘they must also do everything in their power to ensure that the humanitarian principles on which the Convention is founded shall be universally applied’.123 Given that the ICRC has already dealt with non-international conflicts by the word ‘respect’ in CA 1, and if one looks at the ordinary meaning of ‘universal’, it cannot be convincingly held that the obligation to ‘ensure respect’ must be restricted to the domestic level of States.124 The ICRC even reaffirmed the obligation to ensure respect in its renewed commentaries to CA 1 of 2016, where it held the following: ‘the obligation to ensure respect also has an external dimension related to ensuring respect for the Conventions by others that are Party to the conflict. Accordingly, States, whether neutral, allied or enemy, must do everything reasonably in their power to ensure respect for the conventions by others that are Party to a conflict’.125 These statements are quite convincing, as it seems contradictory to oblige States to respect and ensure respect for IHL on the domestic level and then not impede them from contributing to violations of the rules by other parties to a conflict.126 It follows then, that the obligation to ensure respect for IHL is one with relatively few territorial constraints.127
122 Dörmann and Serralvo (n 109), p. 728.
123 ICRC, Draft revised or New Conventions for the Protection of War Victims, Geneva, May 1948,
p.5.
124 Dörmann and Serralvo (n 109), p. 714. 125 ICRC (n 26), para. 153.
126 J. Heieck, ‘Robson on Common Article 1’s Duty to ‘Ensure Respect’ for the Geneva Conventions:
A Critique’, (Opinio Juris, 13 October 2020) < https://opiniojuris.org/2020/10/13/more-common-than- common-a-reaction-to-robsons-post-on-common-article-1s-duty-to-ensure-respect-for-the-geneva-conventions/ > accessed 20 October 2020.
In addition, in a number of resolutions the Security Council (SC) and the General Assembly (GA) of the UN have confirmed the existence of an obligation for third States to ensure respect by other States. In Resolution 681 of 1990, which is concerned with the conflict between Israel and Palestine, the SC called upon ‘the high contracting parties to the Fourth Geneva Convention of 1949 to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1 thereof’.128 It was also affirmed by the Secretary General that the SC should urge the parties to the conventions with close diplomatic relationships to Israel to ‘use all the means at their disposal to persuade the Government of Israel to change its position in regard to the applicability of the Convention’.129
In light of the above it can thus be said that States that are not a party to a given conflict have the obligation to actively ensure respect for the rules of IHL by entities, including other States, that are party to the conflict. As prevention is better than cure, it logically follows that in some cases the duty to ensure respect seems to encompass the duty to prevent violations of IHL. §4.2.2 The duty to prevent violations of international humanitarian law
The existence of a duty to prevent violations of IHL was endorsed by States and the ICRC during the 30th International Conference of the Red Cross and Red Crescent. At this conference, it was held that ‘the obligation of all States to refrain from encouraging violations of international humanitarian law by any party to an armed conflict and to exert their influence, to the degree possible, to prevent and end violations, either individually or through multilateral mechanisms, in accordance with international law’.130
The commentaries of the ICRC also shed light on the content of the obligation to prevent, with the formulation being somewhat similar to the one of the duty to prevent genocide by the ICJ in the Bosnia Genocide case.131 In addition to affirming the existence of a duty to prevent violations of IHL, the commentaries of 2016 elaborate on the circumstances in which this duty comes into play. The ICRC held that the obligation of ensuring respect for IHL is ‘not limited to stopping ongoing violations but includes an obligation to prevent violations when there is a
128 UN SC Res. 681 (1990), UN Doc. S/RES/681, 20 December 1990, para 5.
129 Report Submitted to the Security Council by the Secretary General in Accordance with Resolution
605 (1987), UN Doc. S/19443, 21 January 1988, paras 24-27.
130 ICRC, 30th International Conference 2007: Resolution 3, § 2 under ‘Respect and ensure respect’. 131 Heieck (n 126).
