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2016 | Partners and Legal Pitfalls, by B. Finucane

This article discusses the legal implications of violations of the law of armed conflict (LOAC) by a party to the conflict for the State or States providing it assistance or cooperating with that party. The latter is referred to as a ‘partner’, the term encompasses State, as well as non-State recipients of assistance.

At the time of writing, there are multiple interrelated non-international armed conflicts (NIAC) underway in Syria, which is why the article focuses on Common Article 3 and the customary international rules governing targeting. Finucane points out that, with regard to LOAC compliance, the military competence of partner forces takes on a special significance in the context of assisting partners in a NIAC. LOAC targeting rules presuppose at least minimal competence by those operating weapon systems in armed conflict. LOAC violations by parties to a conflict and war crimes by individual fighters may arise not only from deliberate and intentional misconduct, but also due to incompetence. The standard to measure (in)competence is an objective one of reasonableness. The attacker should have taken reasonable measures to verify the target and taken all reasonably available information into consideration. Finucane subsequently discusses scenarios where LOAC violations occur due to incompetence. He concludes with a hypothetical illustration of how the discussed legal considerations might manifest themselves in the context of Syria, which would result in individual criminal responsibility for members of the partner force.

To determine whether the assisting State is legally implicated by its partner´s LOAC violation(s), the following factors need to be taken into consideration: the degree of confidence that its partner as itself violated LOAC and the presence of the requisite knowledge that its assistance will enable or facilitate the violation. This will depend on the precise nature of the assistance, awareness of how such assistance would be used and the intent of the recipient with respect to the use of such assistance.

The assisting State could incur international legal responsibility as a matter of State responsibility, or its individual officials could incur international legal responsibility as an aider and abettor of the war crimes committed by the partner receiving the assistance.

In the context of State responsibility, the author discusses control, aid and assistance, the duty to ensure respect for LOAC and arms transfer restrictions under the Arms Trade Treaty as possible means by which a State may bear responsibility in relation to the conduct of a partner. He contends that in the Syrian context, control is unlikely to result in State responsibility but arguments could be made for the latter three ground for responsibility.

For officials of the assisting State to incur individual criminal responsibility for aiding and abetting war crimes (in Syria), it must be established that the assistance had a ‘substantial effect’ upon the commission of a crime or underlying offence. Furthermore, the aider and abettor must have been aware at the time of a ‘substantial likelihood’ that their aid would assist the unlawful action and that the partner deliberately or recklessly committed the war crime. On page 424, the author provides various, potential forms of information that would support the claim that officials of the assisting State were aware of both the ‘substantial likelihood’ that their assistance would facilitate war crimes and of the state of mind of their partner. 

Lastly, Finucane addresses risk mitigation measures for two types of risk, namely, that the assisted party will violate LOAC and that the assisting party will be legally implicated in any such violations. He discusses vetting, training, monitoring and the possibility to condition assistance on compliance with LOAC.