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2016 | Moynihan Report Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism

If a state provides assistance that will be used by the recipient state to carry out actions that are wrongful in international law, will the assisting state be responsible in international law for assisting a wrongful act?

This rather legal technical research paper delves into this, and adjacent, questions by considering current international law applicable in situations wherein states assist other states in armed conflicts and counterterrorism operations. 

Article 16 of the International Law Commission’s Articles on State Responsibility

The general rule in this area is set out in Article 16 of the International Law Commission’s (ILC) Articles on State Responsibility. It provides that a state that aids or assists another state in the commission of an internationally wrongful act by the recipient state is internationally responsible, where four conditions are fulfilled.  The paper clarifies the application of these conditions that are elaborated on in the ILC’s Commentary, including the difficult issue of what degree of knowledge or intent engages the responsibility of an assisting state under Article 16. State responsibility under Article 16 concerns an ancillary responsibility, arising from the fact that a state facilitated the wrongful act. Because of this ancillary nature, the remedial consequences for facilitating states are lower than for the recipient state. Due legal debate surrounding the application of Article 16 and a lack of jurisprudence, states are still at risk of facilitating internationally wrongful acts through their cooperation with other states.

Although Article 16 applies to state-to-state assistance in an internationally wrongful act, the paper purports that assistance provided by a state to a non-state actor will give rise to international responsibility where the acts of the non-state actor can be attributed to another state under the rules of attribution.

Primary rules of International Law

International law contains both specific and unspecific primary rules directed to prohibiting the assistance of one state to another in an internationally wrongful act. Unspecific rules have been interpreted by courts holding states responsible for assisting in the wrongful acts of a recipient state. International Humanitarian Law (IHL) and International Human Rights Law (IHRL) have a number of rules relevant to aiding and assisting in the context of armed conflict and counterterrorism situations. Both bodies of law typically impose stricter requirements on assisting states than the general rule in Article 16.  As regard the relationship between Article 16 and these primary rules of international law, the paper finds that although they are substantively quite diverse, they can be invoked together in the context of enforcement in the courts.

The paper’s final chapter highlights strategies and provides recommendations for governments to reduce the risk of assisting in unlawful acts by other states. While stressing the importance of governments assessing in advance the risks of cooperating in an act that may be internationally wrongful, the work advocates for enhanced transparency about the legal framework applicable to the assistance. Transparency also enables states to be accountable to the outside world.