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In Pursuit of Responsibility:
An Exploration of Derived Responsibility for Human Rights
Violations in Peace Operations.
Bachelor’s Thesis, January 2021
The Centre for International and Operational Law Swedish Defence University
Jesper Hellsten
Supervisor: Heather Harrison Dinniss Word count: 9749
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Table of content
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Introduction ... 3
2
Delimitations ... 7
3
Applicable international law ... 8
4
Derived responsibility in peace operations ... 11
4.1 Derived responsibility under HRL ... 11
4.1.1 Troop-contributing nations ... 11
4.1.1.1 The Human Rights Committee ... 14
4.1.1.2 The European Court of Human Rights ... 15
4.1.2 International organizations ... 19
4.1.2.1 HRL obligations of international organizations ... 20
4.2 Derived responsibility under the ILC ARSIWA and ARIO ... 24
4.2.1 Aid or assistance ... 24
4.2.1.1 Objective element ... 25
4.2.1.2 Subjective elements ... 26
4.2.1.3 ‘Double-obligation rule’ ... 28
4.3 Derived responsibility – UNMIK/KFOR ... 30
4.3.1 Background, structure and human rights responsibilities of UNMIK/KFOR ... 30
4.3.2 Allegations of ill-treatment and arbitrary detention ... 32
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Concluding remarks ... 38
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1 Introduction
The protection and promotion of the universal values of the rule of law, human rights and democracy are ends in themselves. They are also essential for the world of justice, opportunity and stability. No security agenda and no drive for development will be successful unless they are based on the sure foundation of respect for human dignity.1
The establishment of peace operations have become a frequent mechanism by which the international community address issues relating to international peace and security, including the promotion of human rights and political processes, facilitation of elections and the
protection of the civilian population.2 However, a prominent criticism that has surfaced in the
context of peace operations is the frequent occurrence of human rights violations committed by peacekeepers.3 Recent allegations directed against peacekeepers have been related to cases
of torture4, sexual exploitation and abuse5, excessive use of force6 and arbitrary detention and
deprivation of life.7 As a response to this criticism, a rich body of literature has addressed
questions of international responsibility whereby particular consideration has been given to issues of attribution of conduct arising from peacekeepers’ actions or omissions.8 However,
1 UNGA, ‘In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary-General’ (2005) UN Doc A/59/2005 para. 128.
2 Rachel Opie, ‘Human Rights Violations by Peacekeepers: Finding a Framework for Attribution of International Responsibility’ (2006) 2006 NZ L Rev 1, 2; Noëlle Quénivet, ‘Human Rights Law in Peacekeeping Operations’ in Marco Odello and Ryszard Piotrowicz (eds), International Military Missions and International Law (Brill 2011) 99.
3 ibid.
4 Reuters, ‘South African military investigates Congo torture reports’ Reuters (London, 12 February 2018) < https://www.reuters.com/article/us-congo-safrica-torture/south-african-military-investigates-congo-torture-reports-idUSKBN1FW18Q> accessed 26 November 2020.
5 Kate Cronin-Furman and Nimmi Gowinathan, ‘UN Peacekeepers: Keeping the peace or preventing it?’ Al-Jazeera (Doha, 2 May 2017) < https://www.aljazeera.com/opinions/2017/5/2/un-peacekeepers-keeping-the-peace-or-preventing-it/> accessed 26 November 2020.
6 Somini Sengupta, ‘Inquiry Finds ‘Excessive Force’ by U.N. Officers in Mali Killings’ The New York Times (New York, 2 April 2015) < https://www.nytimes.com/2015/04/03/world/africa/inquiry-finds-excessive-force-by-un-officers-in-mali-killings.html> accessed 26 November 2020.
7 Behrami and Behrami v France and Saramati v France, Germany and Norway App nos. 71412/01 and 78166/01 (ECtHR 2 May 2007).
8Opie (n 2); Quénivet (n 2); Kjetil Mujezinović Larsen, Human Rights Treaty Obligations of Peacekeepers
(CUP 2012); Frédéric Mégret and Florian Hoffman, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’ (2003) 25 Human Rights Quarterly 314; Bérénice Boutin, ‘Attribution of Conduct in International Military Operations: A Causal Analysis of Effective Control’ (2017) 18 Melb J Int’l L 154; Ömer Faruk Direk, ‘Responsibility in Peace Support Operations: Revisiting the Proper Test for Attribution of Conduct and the Meaning of ‘Effective Control’ Standard (2014) 61(1)
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less attention has been given to other aspects of international responsibility that are relevant in the context of peace operations.
Notably, states and international organizations participating in peace operations can acquire international responsibility in connection with a wrongful conduct committed by another state or international organization because of its implication in that conduct or lack thereof.9 This
form of liability is synonymous with the notion of derived responsibility.10 Derived
responsibility entails that a state or an international organization acquires responsibility for its implication (or lack thereof) in the wrongful conduct of another state or international
organization, the latter of which bears responsibility for committing the main wrongful conduct.11 Consequently, a state or an international organization that acquires derived
responsibility is responsible for its own separate wrongful conduct and not for the main wrongful conduct per se.12 Thus, ‘the responsibility of [the state or the international
organization] depends on the commission of a certain conduct by [another state or
international organization] and would not arise if it was not for the actions of [the latter]’.13
This form of liability is rarely discussed in practice because states and international
organizations often resolve questions of responsibility by relying on the rules of attribution.14
Netherlands International Law Review 1; Tom Dannenbaum, ‘Translating the Standard of Effective Control Into a System of Effective Accountability: How Liability Should Be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers’ (2010) 51 Harv Int’l LJ 113; Cederic Ryngaert, ‘Apportioning Responsibility Between the UN and Member States in UN Peace-Support Operations: An Inquiry Into the Application of the ‘Effective Control’ Standard After Behrami’ (2012) 45(1) Israel Law Review 151; Aurel Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The
Behrami and Saramati Cases’ (2008) 8(1) Human Rights Law Review 151; Marko Milanovic and Tatjana Papic,
‘As Bad as It Gets: The European Court of Human Right’s Behrami and Saramati Decision and General International Law’ (2009) 58 International and Comparative Law Quarterly 267.
9 International Law Commission, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’ Report of the International Law Commission on the Work of its Fifty-Third Session (23 April-1 June and 2 July-10 August 2001) UN Doc A/56/10 (hereafter ARSIWA), Chapter IV of Part I; International Law Commission, ‘Draft Articles on the Responsibility of International Organizations, with Commentaries’ Report of the International Law Commission on the Work of its Sixty-Third Session (26 April-3 June and 4 July-12 August 2011) UN Doc A/66/10 (hereafter ARIO), Chapter IV of Part II and Part V. 10 Bérénice Boutin, ‘The Role of Control in Allocating International Responsibility in Collaborative Military Operations’ (PhD thesis, University of Amsterdam, 2015) (hereafter Boutin, 2015) 148-149; Bérénice Boutin, ’Responsibility in Connection with Military Partners’ (2017) 56 Mil L & L War Rev 57 (hereafter Boutin, 2017) 61.
11 Boutin, 2015 (n 10) 144-145; Boutin, 2017 (n 10) 61. 12 Boutin, 2015 (n 10) 172-173.
13 ibid 149. 14 ibid 171.
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Furthermore, states participating in peace operations are often reluctant to acknowledge any responsibility for conduct attributed to the international organization of which they are members.15 Similarly, the international organization will frequently accept responsibility for
conduct attributed to it while refraining from acknowledging responsibility in connection with conduct attributed to other states and international organizations.16 Moreover, the topic is
rarely the subject of regional and international courts because they are prevented from proceeding on the matter on the basis of immunities and lack of jurisdiction.17 Consequently,
‘the conditions and modalities under which [s]tates and international organizations could be held responsible for their acts and omissions in connection with the conduct of another participant […] range from unclear to indeterminate’18 and therefore warrants further
attention.
Consequently, this enquiry sets out to further elaborate on this subject with a particular focus on the conditions by which troop-contributing nations (hereafter TCN) and international organizations can acquire derived responsibility in peace operations. Notably, this enquiry will specifically focus on human rights violations, which has become a widespread and recurrent issue during peace operations.19 Furthermore, the applicability of human rights law
(hereafter HRL) in peace operations is not always clear-cut,20 which further complicates
questions of derived responsibility. Since the enquiry will focuses on derived responsibility, it will be assumed that peacekeepers have committed a breach of a human rights norm that is attributable to a TCN and, - or an international organization. Breaches of human rights norms during peace operations may occur, for instance, as a result of arbitrary detention21 or
instances of torture or other ill-treatment.22
15 ibid. 16 ibid. 17 ibid. 18 ibid. 19 Opie (n 2) 2. 20 Quénivet (n 2) 101. 21 Saramati (n 7).
22 French peacekeepers participating in the EU-led Operation Artemis were accused of torturing a civilian who was being held prisoner at their compound, see Lydia Polgreen, ‘Investigators in Congo Check Allegations That Peacekeepers Engaged in Torture’ The New York Times (New York, 3 April 2008)
<https://www.nytimes.com/2008/04/03/world/africa/03briefs-INVESTIGATOR_BRF.html> accessed 12 December 2020.
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To that end, the following research question will be examined: Under which conditions can troop-contributing nations and international organizations acquire derived responsibility for human rights violations in which peacekeepers are implicated in peace operations?
To address the research question, the following enquiry will employ a legal doctrinal method.
The paper will proceed as follows: Section 2 will begin by illuminating a number of
delimitations that will set the scope of the enquiry. Section 3 will provide a general overview and discussion of the legal regimes that governs the issue of derived responsibility. Section 4 will examine the particular conditions by which TCNs and international organizations can acquire derived responsibility for human rights violations in peace operations. The conditions will then be discussed and analyzed with reference to an example drawn from practice. Section 5 will provide concluding remarks.
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2 Delimitations
The enquiry will focus on traditional and multidimensional peace operations undertaken by an international organization with the consent of the host state government and where several states have contributed personnel.23 Given that peace operations often operate in fragile
environments where armed conflicts are continuing24 it is possible that the peacekeepers may
become a party to the armed conflict(s).25 However, peacekeepers do not generally engage in
conduct that would effectively make them a party to such conflicts.26 Consequently, the
following enquiry will not examine military operations undertaken against another state (enforcement operations) or military operations actively supporting a state in a non-international armed conflict (peace enforcement operations).27
Moreover, the focus will be on HRL violations committed by peacekeepers outside combat operations. Accordingly, preliminary questions concerning the applicability of international humanitarian law and issues relating to the interplay between international humanitarian law and HRL will be avoided. Notably, the majority of complaints relating to peacekeepers’ conduct relates to actions or omissions occurring outside combat operations.28 Furthermore,
the enquiry will focus on civil and political rights since those rights are more likely to be negatively impacted by the conduct of peacekeepers, which has also been reflected in practice and in the scholarship.29
23 Terry Gill and others, ‘Scope of the Manual’ in Leuven Manual on the International Law Applicable to Peace Operations: Prepared by an International Group of Experts at the Invitation of the International Society for Military Law and the Law of War (CUP 2017) 3.
24 Mujezinović Larsen (n 8) 243. 25 Terry Gill and others (n 23) 3. 26 ibid.
27 ibid 3-4.
28 Andrew Clapham, Human Rights Obligations of Non-State Actors (OUP 2006) 120.
29 Behrami and Saramati (n 7); Bankovic and Other v Belgium and 16 Other Contracting States App no. 52207/99 (ECtHR 12 December 2001) (hereafter Bankovic); Mujezinović Larsen (n 8); Stitching Mothers of
Srebrenica and Others v the Netherlands App no. 65542/12 (ECtHR 11 June 2013); The Netherlands v Hasan Nuhanovic (2013) Supreme Court of the Netherlands 12/03324; The Netherlands v Mehida Mustafic-Mujic, Damir Mustafic and Alma Mustafic (2013) Supreme Court of the Netherlands 12/03329.
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3 Applicable international law
To address the research question, it will be necessary to examine two areas of international law. First, the relevant rules on derived responsibility enshrined in the International Law Commission’s (hereafter ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts30 (hereafter ARSIWA) and Draft Articles on the Responsibility of
International Organizations31 (hereafter ARIO) will be examined. The rules in the ARSIWA
and the ARIO provides the general conditions by which a state or an international
organization can be considered internationally responsible and the consequences flowing therefrom, whereas the primary rules stipulate the content of a particular international obligation.32 While the rules in the ARSIWA and the ARIO are generally referred to as
secondary rules, the rules on derived responsibility in the ARSIWA and the ARIO do not necessarily correspond to this dichotomy.33 As recognized by the ILC, the rules relating to
derived responsibility ‘specifies certain conduct as internationally wrongful’.34 Consequently,
the rules on derived responsibility in the ARSIWA and the ARIO can be construed as substantive obligations similar to a number of primary rules that prescribe obligations in connection with conduct committed by other entities.35 To that end, the following enquiry will
proceed with the interpretation that the rules on derived responsibility provide substantive obligations.
Furthermore, while questions of derived responsibility are less concerned with issues of attribution of conduct, it is submitted that the action or omission of the peacekeepers in connection with the main wrongful conduct must be attributed to a TCN or an international organization before it can be addressed whether the TCN or the international organization can acquire derived responsibility.36 While a comprehensive discussion on the rules governing
attribution of conduct is beyond the scope of this enquiry, it suffices to say that the relevant
30 ARSIWA (n 9). 31 ARIO (n 9).
32 ARSIWA (n 9) General commentary paras. 1-4; ARIO (n 9), General commentary para. 3. 33 Boutin, 2015 (n 10) 172-174; Boutin, 2017 (n 10) 61-63.
34 ARSIWA (n 9) Commentary to Chapter IV para. 7. 35 Boutin, 2015 (n 10) 172-174; Boutin, 2017 (n 10) 61-63. 36 Boutin, 2015 (n 10) 145-146.
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rules on attribution of conduct in peace operations are stipulated in Articles 6-737 and Article
938 of the ARIO. Lastly, it is necessary to make a couple of remarks on the ARSIWA and the
ARIO. The adoption of the ARSIWA and the ARIO resulted from the ILC’s work on the codification and the progressive development of the law on international responsibility’.39 To
that end, ‘[i]t may occur that a provision in the [ARSIWA] could be regarded as representing codification, while the corresponding provision [in the ARIO] is more in the nature of
progressive development’.40 Consequently, all provisions in the ARSIWA and the ARIO are
not necessarily a reflection of the lex lata. However, notwithstanding the character of the rules in the ARSIWA and the ARIO, they provide authoritative guidance on the conditions by which TCNs and international organizations can acquire derived responsibility.
Second, additional grounds for derived responsibility can be found in particular primary norms of international law that provide obligations in connection with conduct of others.41 As
recognized by the ILC, derived responsibility can arise in situations where, for instance, ‘a [s]tate may be required by its own international obligations to prevent certain conduct by another [s]tate, or at least to prevent the harm that would flow from such conduct’.42 Thus, the
rules relating to derived responsibility found in primary norms will be accounted for. For the purpose of this enquiry, the primary norms relating to derived responsibility are found in HRL. As regards the HRL of TCNs, the focus will be on the obligations flowing from the extraterritorial application of the European Convention on Human Rights43 (hereafter ECHR)
37 ARIO (n 9) Article 6: ‘1. The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization. 2. The rules of the organization shall apply in the determination of the functions of its organs and agents’; ARIO (n 9) Article 7: ‘The conduct of an organ of a [s]tate or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct’; On the issue of attribution of conduct in collaborative military operations extensively, see Boutin, 2015 (n 10) 77-141.
38 ARIO (n 9) Article 9: ‘Conduct which is not attributable to an international organization under [A]rticles 6 to 8 shall nevertheless be considered an act of that organization under international law if and to the extent that the organization acknowledges and adopts the conduct in question as its own’.
39 ARSIWA (n 9) General commentary, para. 1; ARIO (n 9) General commentary, para. 5. 40 ibid.
41 Boutin, 2017 (n 10) 63.
42 ARSIWA (n 9) Commentary to Chapter IV para. 4.
43 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (hereafter ECHR).
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and the International Covenant on Civil and Political Rights44 (hereafter ICCPR). Notably,
this pertains to a state’s obligation not to assist others in the commission of human rights violations, which flows from the state’s obligation to respect and protect the human rights of individuals within their jurisdiction.45
The reason for primarily focusing on the ECHR and the ICCPR relates to the fact that specific questions concerning the application of HRL conventions in peace operations have
predominantly concerned those instruments.46 Needless to say, there are HRL instruments
besides the ECHR and the ICCPR that may be applicable to TCNs in peace operations. However, the ECHR, in particular, has acquired a unique position in HRL because of the influential jurisprudence of the European Court of Human Rights (hereafter the ECtHR or the Court).47 Furthermore, while it is recognized that TCNs can derogate from certain human
rights provisions under the ECHR and the ICCPR, it will be assumed that the TCNs have not made any valid derogations.48
Finally, the applicability of HRL to international organizations will be examined and
questions concerning the scope of international organizations’ HRL obligations in connection with conduct of others will be discussed.
44 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (hereafter ICCPR).
45 Boutin, 2017 (n 10) 69; See section 4.1.1 below for further discussion on states’ obligation to respect and protect.
46 Mujezinović Larsen (n 8) 6-7. 47 ibid.
48 ECHR (n 43) Article 15: ‘1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogation from its obligations this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law’; ICCPR (n 44) Article 4: ‘1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law […]’; For further discussion on derogations in peace operations, see Mujezinović Larsen (n 8) 298-313.
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4 Derived responsibility in peace operations
In the following sections the conditions by which TCNs and international organizations can acquire derived responsibility for human rights violations committed by peacekeepers will be examined. The conditions for derived responsibility examined in this enquiry are found in HRL, the ARSIWA and the ARIO. First, the conditions for derived responsibility under HRL will be considered (4.1) and thereafter the conditions for derived responsibility found in the ARSIWA and the ARIO will be reviewed (4.2). Finally, the conditions discussed in sections 4.1 and 4.2 will be examined in light of the United Nations Mission in Kosovo (hereafter UNMIK) and the Kosovo Force (hereafter KFOR) (4.3).
4.1 Derived responsibility under HRL
4.1.1 Troop-contributing nations
In order for a state to have HRL obligations, it must be established that the HRL instrument to which it is a party is applicable. A common prerequisite for the applicability of HRL
instruments is that the state exercises jurisdiction. Article 1 of the ECHR stipulate that states ‘[…] shall secure to everyone within their jurisdiction the rights and freedoms […]’49 of the
Convention and Article 2(1) of the ICCPR provides that states have to ‘[…] respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant […]’.50 Thus, the exercise of jurisdiction is a necessary threshold for
any state to have obligations under the ECHR and the ICCPR. This is also evidenced by the words of the ECtHR who noted that ‘[t]he exercise of jurisdiction is a necessary condition for [a state] to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention’.51
Consequently, in order for a TCN to have any HRL obligations in peace operations it must be established that the TCN exercises jurisdiction.52
49 ECHR (n 43) art 1. 50 ICCPR (n 44) art 2(1).
51 Ilașu and Others v Moldova and Russia App no. 48787/99 (ECtHR 8 July 2004) para. 311. 52 Mujezinović Larsen (n 8) 165.
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Today, it is generally accepted that when a state exercises jurisdiction it has a positive
obligation to protect and a negative obligation to respect HRL.53 The former obligation entails
that a state must take certain steps in order to prevent others from violating the human rights of individuals, and latter obligation entails that a state must refrain from interfering with the enjoyment of individuals’ human rights.54 While a state’s obligation to protect and respect has
generally been examined in relation to human rights violations committed by non-state actors, the obligation may arguably also cover violations committed by other states.55 Furthermore, it
should be noted that, at least in the context of the ECHR, the Court has never explicitly referred to the notion of derived responsibility or the provisions on derived responsibility provided by the ILC ARSIWA.56 Arguably, this relates to the notion that the provisions in the
ARSIWA conditions derived responsibility on the commission of a wrongful conduct by another state.57 Consequently, in the context of the ECHR, the Court would have to establish
the wrongfulness of a third state’s conduct, which may violate the Monetary Gold58 principle.59 Moreover, the ECtHR has tended to accommodate situations of derived
responsibility within the positive and negative obligations of states.60 Accordingly, the Court
has been inclined to isolate the individual conduct of states in order to assess their conformity with the positive and negative obligations and thereby holding the states directly responsible for breaches of the ECHR.61 Notwithstanding this inclination of the Court, the positive and
53 Conor Foley, ’The Human Rights Obligations of UN Peacekeepers’ (2016) 8 Global Resp Protect 431, 434-435.
54 Dinah Shelton and Ariel Gould, ’Positive and Negative Obligations’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (1st edn, OUP 2013) 566.
55 Maarten den Heijer, ‘Shared Responsibility Before the European Court of Human Rights’ (2013) 60(3) Netherlands International Law Review 411, 422.
56 ibid 421. 57 ibid.
58 The Monetary Gold principle is an admissibility criterion that was originally developed by the ICJ in the Case of the Monetary Gold Removed from Rome in 1943 where it held that: ‘[…] the jurisdiction conferred upon it by
a common agreement of France, the United Kingdom, the United States of America and Italy does not, in the absence of the consent of Albania, authorize it to adjudicate [the case] […] [because] Albania’s legal interest would not only be affected by a decision, but would form the very subject-matter of the decision’ (see Case of
the Monetary Gold Removed from Rome in 1943 (Preliminary Question) (Judgment) [1954] ICJ Rep 1954 90,
32-34); Similar jurisdictional qualifications are found in Articles 32-34 of the ECHR and the ECtHR has confirmed that the ECHR ‘[…] does not govern the actions of [s]tates not [p]arties to it, nor does it purport to be a means of requiring the [c]ontracting [s]tates to impose Convention standards on other [s]tates’ (see Soering v
the United Kingdom App no. 14038/88 (ECtHR 7 July 1989) para. 86). 59 den Heijer (n 55) 421–422.
60 ibid. 61 ibid 438.
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negative obligations are nonetheless relevant for the notion of derived responsibility since the responsibility of the state is triggered in connection with a harmful conduct of another state.62
As regards the obligation to respect, the standard set by the ECtHR seems to be that a state can be held responsible for assisting human rights violations about which it ‘knew or ought to have known’.63 With respect to the obligation to protect, the jurisprudence of the ECtHR
illuminate that ‘whenever it is known or when it ought to have been known that an individual within the jurisdiction of a [state] is exposed to a real risk of ill-treatment, it is incumbent on the state to take steps to prevent that risk from materialising’.64 In particular, the Court has
interpreted that the obligation to protect includes ‘[…] a duty to make use of material opportunities to prevent or redress conduct by another state which contravenes the standards of the ECHR’.65 Consequently, the standard reflected in HRL appears to be that a TCN can
bear a share of responsibility for human rights violations about which it knew or ought to have known or when it knew or ought to have known of a foreseeable risk.66 To that end, a TCN
that fails to observe its negative and positive obligations in connection with human rights violations committed by another TCN, can acquire derived responsibility.
Given that the majority of peacekeepers participating in peace operations operate outside the territories of the sending states, the following paragraphs will examine the conditions for the extraterritorial applicability of the ECHR and the ICCPR.
62 Boutin, 2015 (n 10) 149.
63 El-Masri v Macedonia App no. 39630/09 (ECtHR 13 December 2012) para. 198; Boutin, 2017 (n 10) 69. 64 El-Masri (n 63) para.198; see also Osman v the United Kingdom App no. 25432/94 (ECtHR 28 October 1998) para. 116.
65 den Heijer (n 55) 422. 66 Boutin, 2017 (n 10) 78.
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4.1.1.1 The Human Rights Committee
In one of its early opinions the UN Human Rights Committee (hereafter HRC) recognized that a state must observe the ICCPR when it exerts control over individuals on a foreign territory. In Lopez Burgos v Uruguay the HRC held that even though Uruguay acted on Argentinian territory, it would not be barred from reviewing the claim since Uruguay exercised extraterritorial jurisdiction by virtue of controlling the claimant.67 Furthermore, in
Lilian Celiberti de Casariego v Uruguay, the HRC confirmed that when a state exercises control over individuals, ‘wherever [it] occurred’68, the state will be bound by the ICCPR.69
Moreover, the HRC has stated on multiple occasions that states must comply with ICCPR in situations where they exercise effective control over a foreign territory. For instance, the HRC expressed its concern in regard to the failure of Israel to fully comply with the ICCPR in the occupied territories of Palestine70 and in relation to the conduct of the Belgian contingent in
Somalia during the UNSOM II-mission.71
Furthermore, the HRC has stipulated that:
[States] are required by [A]rticle 2, paragraph 1, to respect and to ensure the [ICCPR] rights to all persons who may be within their territory and to all persons subject to their jurisdiction […] This principle also applies to those within the power or effective control of the forces of a [state] acting outside its territory, regardless of the
circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a [state] assigned to an international
[peacekeeping] or [peace enforcement] operation.72
67 Lopez Burgos v Uruguay Comm no. 52/1979 (29 July 1981) UN Doc CCPR/C/OP/1 para. 12.1.
68 Lilian Celiberti de Casariego v Uruguay Comm no. 56/1979 (29 July 1981) UN Doc CPPR/C/OP/1 para. 10.1.
69 ibid.
70 UN Human Rights Committee (HRC), ‘Concluding Observations of the Human Rights Committee’ (18 August 1998) UN Doc. CCPR/C/79/Add. 93 para. 10.
71 UN Human Rights Committee (HRC), ‘Concluding Observations of the Human Rights Committee’ (19 November 1998) UN Doc. CCPR/C/79/Add. 99 para. 14.
72 UN Human Rights Committee (HRC), ’General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligations Imposed on States Parties to the Covenant’ (29 March 2004) UN Doc.
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In sum, the reasoning by the HRC supports the conclusion that TCNs will be bound the ICCPR extraterritorially to the extent that they exercise effective control over territory and, - or power over individuals.
4.1.1.2 The European Court of Human Rights
Similar to the HRC, the ECtHR has established two conditions for the extraterritorial application of the ECHR: one being that the state exercises jurisdiction by way of having effective control over a specific territory (ratione loci) and the other being that the state exercises jurisdiction by virtue of having authority and control over individuals (ratione personae).73
In Loizidou v Turkey (Preliminary Objections)74 the ECtHR found that Turkey exercised extraterritorial jurisdiction by virtue of its effective control over the northern areas of Cyprus and therefore Turkey was under the obligation to secure the rights in the ECHR in that area.75
Furthermore, the Court stipulated that the obligation to secure the rights contained in the ECHR would ensue regardless of whether the effective control was established through lawful or unlawful military action, or whether Turkey exercised such control through its armed forces or through the subordinate local administration.76 A similar conclusion was reiterated
by the Court in Cyprus v Turkey.77 Accordingly, the reasoning by the ECtHR in Loizidou v
Turkey (Preliminary Objections) and Cyprus v Turkey suggests that a state will be bound by
73 Marko Milanovic, ‘Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court’ in Anna van Aaken and Iulia Motoc (eds), The European Convention on Human Rights and General International
Law (1st edn, OUP 2018) 98.
74 Loizidou v Turkey (Preliminary Objections) App no. 15318/89 (ECtHR 23 March 1995). 75 ibid para. 62.
76 ibid.
77 Cyprus v Turkey App no. 25781/94 (ECtHR 10 May 2001) para 77: ‘[…] Having effective overall control over northern Cyprus, [Turkey’s] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey’s ‘jurisdiction’ must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she ratified, and that violations of those rights are imputable to Turkey’.
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the ECHR extraterritorially when it exercises effective control over a particular area, regardless of whether it does so lawfully or unlawfully.78
However, in the subsequent Bankovic and Others v Belgium and 16 Other States79 the Court
seemed to restrict the notion of jurisdiction ratione loci. By and large, the Court had to consider whether the applicants were capable of falling within the jurisdiction of the respondent states by virtue of a single extraterritorial bombing.80 In declaring the case
inadmissible, the Court held that the single conduct did not bring the applicants within the jurisdiction ratione loci of the respondent states.81 Notably, the ECtHR stipulated that a
reverse conclusion would be commensurate with contending that any individual being adversely affected by conduct imputable to a state, irrespective of where the conduct was committed or produced effects, would ultimately bring individuals within Article 1 of the ECHR.82 Moreover, the ECtHR appeared to introduce an additional qualification for the
establishment of jurisdiction ratione loci which had not been reflected in its earlier jurisprudence.83 In particular, the Court implied that effective control over a territory is
conditioned on the notion that the state, through consent, invitation or acquiescence by the foreign government, exercises some or all public powers normally undertaken by the latter government.84 In addition, the Court noted that the ECHR operates ‘in an essentially regional
context and notably in the legal space (espace juridique) of the Contracting States […]. The [ECHR] was not designed to be applied throughout the world, even in respect of the conduct of Contracting States’.85 Nonetheless, in the subsequent Issa and Others v Turkey86, the
78 Quénivet (n 2) 114. 79 Bankovic (n 29). 80 ibid paras. 26 and 68. 81 ibid para. 75. 82 ibid.
83 Isil Karakas and Hasan Bakirci, ’Extraterritorial Application of the European Convention on Human Rights: Evolution of the Court’s Jurisprudence on the Notions of Extraterritorial Jurisdiction and State Responsibility’ in Anna van Aaken and Iulia Motoc (eds), The European Convention on Human Rights and General International
Law (1st edn, OUP 2018) 120.
84 Bankovic (n 29) para. 71: ’In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government’.
85 ibid para. 80.
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ECtHR seemed to reaffirm its position on the establishment of jurisdiction ratione loci reflected in Loizidou v Turkey (Preliminary Objections) and Cyprus v Turkey. While the Court did not find that the applicants fell within the jurisdiction of Turkey, the ECtHR submitted that it could not exclude the possibility that Turkey, through its military action in northern Iraq, could have exercised, even temporarily, effective control of the particular area in Iraq.87
To summarize, notwithstanding the ambiguous reasoning by the Court, its case-law generally supports the conclusion that whenever a state exercises effective control over a specific area overseas, it will be bound by the ECHR.
In Öcalan v Turkey88 the ECtHR had to consider whether Turkey exercised jurisdiction by
way of arresting an individual on Kenyan territory and thereafter transporting the individual back to Turkey. The Court stipulated that ‘[…] directly after being handed over to the Turkish officials […] the applicant was effectively under Turkish authority and therefore within the ‘jurisdiction’ of [Turkey] […] even though in this instance Turkey exercised its authority outside its territory’.89 Moreover, in Al-Jedda v the United Kingdom the Court found that the
United Kingdom exercised authority and control over the applicant by virtue of his internment in the detention facility controlled by the British forces.90 Similarly, in Al-Skeini and Others v
the United Kingdom the Court noted that ‘whenever the [s]tate, through its agents, exercises control and authority over an individual, and thus jurisdiction, the [s]tate is under an
obligation […] to secure to that individual the rights and freedoms under Section I of the Convention […]’.91 In addition, the Court also stated that jurisdiction is not solely triggered as
a result of a state’s control over the facilities in which the individual is held, but the decisive
87 ibid para. 74: ‘[The ECHR] does not exclude the possibility that, as a consequence of this military action, [Turkey] could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq. Accordingly, if there is a sufficient factual basis for holding that, at the relevant time, the victims were within that specific area, it would follow logically that they were within the jurisdiction of Turkey (and not that of Iraq, which is not a Contracting State and clearly does not fall within the legal space (espace juridique) of the Contracting States) […]’.
88 Öcalan v Turkey App no. 46221/99 (ECtHR 12 May 2005). 89 ibid para. 91.
90 Al-Jedda v the United Kingdom App no. 27021/08 (ECtHR 7 July 2011) para. 85.
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factor ‘is the exercise of physical power and control over the person in question’.92 However,
by way of concluding, the ECtHR reiterated one of the additional qualifications that was originally introduced in the Bankovic and Others v Belgium and 16 Other States concerning the establishment of jurisdiction ratione loci.93 This conclusion raises the question whether
the Court conditioned the establishment of jurisdiction ratione personae on the basis that the United Kingdom exercised public powers. Notably, Milanovic answered this question in the affirmative.94 However, in the more recent Hassan v the United Kingdom the Court
unequivocally stated that the applicant ‘fell within the jurisdiction of the United Kingdom from the moment of his capture by the United Kingdom troops […] until his release […]’95
without conditioning its conclusion on the basis of public powers.96 Thus, notwithstanding
some ambiguities in the Court’s reasoning, the ECtHR jurisprudence supports the conclusion that whenever a state exercises authority and control over individuals, regardless of the location, it will be bound by the ECHR.97
By way of summarizing, the jurisprudence of the ECtHR generally supports the conclusion that when a state exercises effective control over a specific area and, - or has authority and control over individuals, the ECHR will be applicable extraterritorially. Thus, TCNs will be bound by the ECHR and the ICCPR to the extent that it can be shown that they fulfil the factual criteria for extraterritorial jurisdiction.98 Consequently, in order for a TCN (A) to have
obligations in connection with human rights violations committed by another TCN (B), it must be established that the peacekeepers’ action or omission in connection with the human rights violation committed by TCN (B) is attributed to the TCN (A)99 and that the individuals
subjected to the violation fell within the jurisdiction of TCN (A).
92 ibid para. 136.
93 ibid paras. 149-150: ‘[…] the United Kingdom […] [exercised] some of the public powers normally exercised by a sovereign government’.
94 Marko Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23(1) EJIL 129, 130: ‘[…] had [the United Kingdom] not exercised such public powers, the personal model of jurisdiction would not have applied’. 95 Hassan v the United Kingdom App no. 29750/09 (ECtHR 16 September 2014) para. 80.
96 Milanovic (n 73) 100. 97 ibid.
98 Conversely, when it cannot be shown that the TCNs exercise jurisdiction they will not be bound by the HRL obligations.
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4.1.2 International organizations
In order for international organizations to acquire any responsibility under international law, including HRL, it must be established that the organization has international legal personality that is separate from its members.100 Having international legal personality entails that a
particular entity has ‘the capacity of being a subject of legal duties and legal rights […]’.101
Thus, an international organization without international legal personality is not able to have separate human rights obligations from its member states, whereby the HRL obligations of the states will be applicable to conduct of the international organization.102 In the Reparations for
Injuries the International Court of Justice (hereafter ICJ) found that the United Nations (hereafter UN) has international legal personality because it exercises functions and rights conferred to it.103 Furthermore, the ICJ noted that even though the UN has international legal
personality it ‘[…] is not the same thing as saying that it is a [s]tate, which it certainly is not, or that its legal personality and rights and duties are the same as those of a [s]tate […]’.104
Moreover, the ICJ also stated that ‘[w]hereas a [s]tate possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the [UN] must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’.105 Besides the UN, it has also been recognized that the
North Atlantic Treaty Organization (hereafter NATO) has international legal personality.106
100 ARIO (n 9) Article 2(a): ‘’international organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality […]’; ARIO (n 9) Commentary to Article 2 para. 10: ‘The legal personality of an organization which is a precondition of the international responsibility of that organization needs to be ‘distinct from that of its member [s]tates […]’; Mujezinović Larsen (n 8) 88-89.
101 Guglielmo Verdirame, The UN and Human Rights: Who Guards the Guardians? (CUP 2011) 58-59. 102 Mujezinović Larsen (n 8) 89.
103 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 1949 174, 179.
104 ibid. 105 ibid 180.
106 International Law Commission, ‘Responsibility of International Organizations, Comments and Observations Received from International Organizations’ (2011) UN Doc A/CN.4/637/Add. 1, General comments, North Atlantic Treaty Organization, para. 2: ‘NATO is an international organization within the meaning of draft article 2 (a) of the draft articles, and as such a subject of international law. It possesses international legal personality as well as treaty-making power’.
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Consequently, the specific obligations of international organizations is determined by virtue of their functions and purposes.107
As regards the sources of obligations incumbent on international organizations, they can be established under rules of customary international law (hereafter CIL), by conventions to which they are a party or by a general principle of international law.108 In addition,
obligations may also arise from the rules of the international organization, in particular ‘the constituent instruments, decisions, resolutions and other acts of the organization adopted in accordance with those instruments, and established practice of the organization’.109 Given that
international organizations seldom are parties to HRL conventions110, it is more likely that
they will have HRL obligations flowing from CIL and their constituent instruments.111
4.1.2.1 HRL obligations of international organizations
It is generally accepted that international organizations are at the minimum bound by the human rights norms that have reached the status of jus cogens.112 Jus cogens norms are
binding on every subject of international law, irrespective of whether the particular entity has consented to them.113 While there is no comprehensive list of human rights norms with jus
cogens status, the least controversial examples are the prohibition on genocide, the prohibition on slavery, the prohibition on racial discrimination and the prohibition on torture.114 With
respect to human rights norms under CIL, it has been generally recognized that some or all of the provisions spelled out in the Universal Declaration of Human Rights have acquired the
107 Ellen Campbell and Elizabeth Dominic and Snezhana Stadnik and Yaunzhou Wu, ‘Due Diligence Obligations of International Organizations under International Law’ (2018) 50 NYU J Int’l L & Pol 541 (hereafter Campbell and Others) 547.
108 ARIO (n 9) Article 10 para. 2.
109 ARIO (n 9) Article 10 para. 4; see also Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 1980 73, 89-90: ‘International organizations are subjects of
international law and […] are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’. 110 Quénivet (n 2) 117.
111 Verdirame (n 101) 72. 112 Quénivet (n 2) 131–132.
113 Quénivet (n 2) 132; Campbell and Others (n 107) 549.
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status of CIL, including the prohibition on torture, arbitrary deprivation of life, arbitrary arrest and detention, the right to equality before the law and the right to a due process.115
While there appears to be a consensus that HRL is applicable to international organizations by virtue of CIL, there is still a debate concerning the scope of such HRL obligations. As noted in section 4.1.1, TCNs have an obligation to protect and respect human rights of individuals within their jurisdiction. Moreover, a TCN that fails to observe its obligation to protect and respect in connection with a HRL violation of another TCN can acquire derived
responsibility. Notably, such obligations was originally developed in relation to states parties to HRL conventions and not in relation to international organizations.116 Furthermore, given
that international organizations seldom are parties to those HRL conventions, it is unlikely that they will shoulder the same obligations as TCNs.117 Thus, it is submitted that the scope of
international organizations’ HRL obligations will, in general, be more limited. However, as contended by Pacholska in regard to UN peace operations, ‘there is no convincing rationale for the UN not to be bound by positive obligations, with necessary modifications, when UN forces’ control has crossed the threshold required for the human rights based concept ‘within the jurisdiction’ to materialize’.118 Thus, it is arguable that in the exceptional situations where
the UN effectively administers territories119, it will have positive obligations under HRL.120
Similarly, it is conceivable that the UN will have positive obligations under HRL within the facilities that it controls.121 In situations falling short of that, it is arguable that ‘[a]n
international organization must, at a minimum, respect human rights […]’.122 Having said
that, it remains uncertain to what extent such HRL obligations extends to conduct of other
115 Quénivet (n 2) 126-127; Campbell and Others (n 107) 549-550. 116 Campbell and Others (n 107) 551.
117 ibid.
118 Magdalena Pacholska, Complicity and the Law of International Organizations: Responsibility for Human Rights and Humanitarian Law Violations in UN Peace Operations (Edward Elgar Publishing Limited 2020) 60. 119 Dannenbaum (n 8) 133: ’[UN] peacekeeping operations can attain even the heightened standard of quasi-sovereign control, most obviously when the operation involve international civilian administrations, as in Kosovo under UNMIK and East Timor under the [UN] Transitional Administration (‘UNTAET’). The forces attached to such administrations often take on a certain quasi-governmental duties and thus exercise effective control in their own right’.
120 Pacholska (n 118) 60. 121 ibid.
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states and international organizations for the purpose of derived responsibility. However, in cases where the international organization ‘takes on quasi-sovereign status and effectively administers [a] territory’123 it can be contended that the international organization will have
similar HRL obligations as TCNs. Thus, it is conceivable that when an international
organization fails to observe its obligation to respect and protect in connection with human rights violations of other TCNs and international organizations, it can acquire derived responsibility. For the current purpose, it is recognized that the UN is the only international organization likely to have a positive obligation under HRL by virtue of effectively
administering territories, since it is the international organization that normally undertakes such functions.124 However, it is conceivable that international organizations other than the
UN can have positive obligations under HRL by way of controlling facilities.
As regards HRL obligations under the constituent instruments of international organizations, there are direct references to them in the UN Charter, which ‘are sufficient to establish a legal basis for their general applicability to the activities of the UN’.125 Notably, Article 1 stipulate
that one of the purposes of UN is ‘[…] promoting and encouraging respect for human rights and for fundamental freedoms for all […]’126 and the UN is also under the obligation to act ‘in
pursuit of the purposes stated in Article 1’.127 Arguably, the combined provisions in Articles 1
and 2 of the Charter entails that the UN has a ‘general obligation to respect human rights’.128
Furthermore, there are also explicit references to HRL obligations incumbent on the European Union under the Treaty of Lisbon.129 Accordingly, in situations where the European Union
123 Pacholska (n 118) 60.
124 Richard Caplan, A New Trusteeship?: The International Administration of War-Torn Territories (Francis & Taylor Group 2001) 21: ‘Today […] this function is performed by the UN […]’.
125 Verdirame (n 101) 74.
126 United Nations, ‘Charter of the United Nations’ (24 October 1945) 1 UNTS XVI art. 1. 127 ibid art. 2.
128 Verdirame (n 101) 74.
129 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European
Community [2007] OJ C306/01, art. 2(5): ‘[i]n its relations with the wider world, the Union […] shall contribute to […] the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter; see also Article 6(3): ‘[f]undamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’.
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undertakes peace operations, it is conceivable that it will be bound to respect HRL by virtue of its constituent instrument.
To summarize, international organizations operating in peace operations are bound by HRL by virtue of CIL and their constituent instruments and they are under the obligation to, at the minimum, respect such HRL obligations. Moreover, it is conceivable that an international organization has an obligation to protect within the facilities it controls. In addition, the UN has an obligation to protect when it administers territories. It is arguable that the HRL obligations of an international organization can extend to conduct of other TCNs and international organizations when it ‘takes on a quasi-sovereign status and effectively
administers [a] territory’, which, for the current purpose, mainly relates to the UN. Thus, it is arguable that the UN, similar to TCNs, can be held derivatively responsibility when it assists human rights violations or fails to comply with its obligation to protect in connection with human rights violations of other TCNs and international organizations.
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4.2 Derived responsibility under the ILC ARSIWA and ARIO
In the following paragraphs, the conditions by which TCNs and international organizations can acquire derived responsibility for human rights violations committed by peacekeepers under the ARSIWA and the ARIO will be examined. While the ARSIWA and the ARIO accommodate a number of relevant rules concerning conduct in connection with other states and international organizations in peace operations130, the following enquiry will focus on
‘Aid or assistance’131 (hereafter also complicity).
4.2.1 Aid or assistance
Article 16 of the ARSIWA provides that a state bears derived responsibility when it aids or assists another state in the commission of the main wrongful conduct and ‘does so with knowledge of the circumstances of the [main wrongful conduct] [and] the [main wrongful conduct] would be internationally wrongful if committed by that [s]tate’.132 The
corresponding provisions relating to aid or assistance in ARIO are found in Article 14133 and
Article 58.134 Notably, the prohibition on providing aid or assistance under Article 16 is
130 For instance, ARIO (n 9) Article 14: ’1. An international organization incurs international responsibility if it circumvents one of its international obligations by adopting a decision binding member [s]tates or international organizations to commit an act that would be internationally wrongful if committed by the former organization. 2. An international organization incurs international responsibility if it circumvents one of its international obligations by authorizing member [s]tates or international organizations to commit an act that would be
internationally wrongful if committed by the former organization and the act in question is committed because of that authorization. 3. Paragraphs 1 and 2 apply whether or not the act in question is internationally wrongful for the member [s]tates or international organizations to which the decision or authorization is addressed.’; See also ARIO (n 9) Article 61: ’1. A [s]tate member of an international organization incurs international responsibility if, by taking advantage of the fact that the organization has competence in relation to the subject-matter of one of the [s]tate’s international obligations, it circumvents that obligation by causing the organization to commit an act that, if committed by the [s]tate, would have constituted a breach of the obligation. 2. Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organization’.
131 ARSIWA (n 9) Article 16; ARIO (n 9) Article 14; ARIO (n 9) Article 58. 132 ARSIWA (n 9) Article 16.
133 ARIO (n 9) Article 14: ’An international organization which aids or assists a [s]tate or another international organization in the commission of an internationally wrongful act by the [s]tate or the latter [international] organization is internationally responsible for doing so if: (a) the organization does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that organization’.
134 ARIO (n 9) Article 58: ‘1. [a] [s]tate which aids or assists an international organization in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) the [s]tate does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that [s]tate. 2. An act by a [s]tate member of an international organization done in accordance with the rules of the organization does not as such engage the international responsibility of that [s]tate under the terms of this [A]rticle’.
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generally considered to be a reflection of CIL.135 Furthermore, while there have been some
objections regarding the nature of the corresponding rules in the ARIO, they are largely recognized to be applicable to states and international organizations by virtue of CIL.136
Nonetheless, while it is generally settled that the rules on aid or assistance are applicable to states and international organizations by virtue of CIL, the constituent elements of the rules are not.137
4.2.1.1 Objective element
With respect to the objective element of complicity, the ILC has not explicitly defined the notion of providing aid or assistance or whether the terms should be considered different concepts within the meaning of the ARSIWA and the ARIO.138 Conversely, the ILC has
adopted a wide conception of aid or assistance in order to accommodate a wide range of complicit conduct.139 Accordingly, responsibility for aiding or assisting may arise, for
instance, in situations when a state or an international organization provides essential facilities, financing or other material contributions to the main wrongful conduct.140 It may
also cover other conduct, including the transferring over individuals, transporting forces and equipment, and supplying intelligence.141 Moreover, it is recognized that the main wrongful
conduct by the aided or assisted state or international organization must have been completed in order for the complicit state or international organization to bear derived responsibility.142
In addition, the complicit conduct need not have been ‘essential’ to the commission of the main wrongful conduct, but it should have contributed ‘significantly’.143 Finally, it has been
debated whether the objective element of complicity is confined to situations when the state or the international organization actively contributed to the main wrongful conduct, or whether it also accommodates omissions. Notably, in the Bosnian Genocide case, the ICJ
135 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 2007, para. 420 (hereafter
Bosnian Genocide). 136 Pacholska (n 118) 95.
137 ibid; Boutin, 2017 (n 10) 65–66. 138 Pacholska (n 118) 96.
139 ibid 99.
140 ARSIWA (n 9) Commentary to Article 16 para. 1. 141 Boutin, 2017 (n 10) 59.
142 ARSIWA (n 9) Commentary to Article 16 paras. 3 and 5.
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ruled that responsibility for complicity is limited to actions rather than omissions.144 However,
it is not clear from ICJ’s reasoning whether it merely referred to complicity for genocide under Article 3(e) of the Genocide Convention, or whether it also extended to complicity under Article 16 of the ARSIWA.145 Moreover the reasoning by the ICJ also runs contrary to
the notion that responsibility can be acquired through actions or omissions.146 Indeed, a
majority of the scholarship have found that complicity by omission is conceivable, which supports the conclusion that omissions can be included within the notion of aid or
assistance.147
4.2.1.2 Subjective elements
While it has been recognized by states, international organizations and the scholarship that subjective elements are necessary to acquire derived responsibility for complicity, there is currently no consensus on which subjective elements are required to establish complicity.148
Article 16(a) in the ARSIWA and Articles 14(a) and 58(a) in the ARIO provides that the aid or assistance must be given with ‘[…] knowledge of the circumstances of the internationally wrongful act’.149 As noted by the ILC, the knowledge requirement entails that the state or
international organization has to be aware ‘of the circumstances in which its aid or assistance is intended to be used by the other state [or international organization]’.150 Notably, this
requirement means that the complicit state or international organization must know about the unlawful nature of the main wrongful conduct it is, or will be facilitating.151 Moreover, the
commentaries to Articles 16 and 14 stipulate that the complicit conduct must be carried out with ‘a view of facilitating the [main wrongful conduct]’.152 In other words, the commentaries
144 Bosnian Genocide (n 135) para. 432: ‘[…] complicity always requires that some positive action has been taken to furnish aid or assistance […]’.
145 Vladyslav Lanovoy, ‘Complicity in an Internationally Wrongful Act’ in André Nollkaemper and Ilias Plakokefalos (eds), Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (CUP 2014) 144; Pacholska (n 118) 97
146 ibid.
147 Pacholska (n 118) 97. 148 ibid 101.
149 ARSIWA (n 9) Article 16; ARIO (n 9) Article 14; ARIO (n 9) Article 58.
150 ARSIWA (n 9) Commentary to Article 16 para. 4; ARIO (n 9) Commentary to Article 14 para. 3. 151 Pacholska (n 118) 104.
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also provides that intent is a necessary requirement to establish complicity.153 Nevertheless,
the ILC has not provided any definition of intent, nor is it clear from the commentaries to the ARSIWA and the ARIO what the provision entails.154 However, by drawing on the definition
of intent in the Rome Statute, Moynihan contend that intent within the meaning of complicity should be interpreted with regard to a particular consequence.155 Accordingly, it is arguable
that a complicit actor ‘has the necessary intent if either its purpose in acting is to facilitate the recipient [actor’s] unlawful act, or it knows or is virtually certain that [the recipient actor] will act unlawfully in the ordinary course of events’.156 To that end, the ARSIWA and the ARIO
conditions responsibility for complicity on the basis that a state or an international
organization had knowledge of the circumstances of the main wrongful conduct and that it intended to facilitate the main wrongful conduct.
With respect to the knowledge qualification, there is a continuing debate whether it requires the aider or assister to have ‘actual’ or ‘constructive’ knowledge.157 Currently, the majority
view of states and international organizations favors the standard of actual knowledge, meaning that the complicit state or international organization can acquire derived
responsibility if it knew that the main wrongful conduct was unlawful.158 Arguably, having
actual knowledge also includes those cases when the state or international organization willingly refrain from investigating ‘clear indications that the act it is supporting is
unlawful’.159 Thus, it cannot be claimed that the complicit state or international organization
should have known about the wrongfulness, unless the state or international organization deliberately avoided evident information about the unlawful nature of the main wrongful conduct.160 Consequently, the ILC has set a high threshold for knowledge compared to the
lower standard reflected in the primary norms under HRL.161 With respect to the requirement
153 Harriet Moynihan, ’Aiding and Assisting: The Mental Element under Article 16 of the International Law Commission’s Articles on State Responsibility’ (2018) 67(2) The International and Comparative Law Quarterly 455, 466. 154 ibid. 155 ibid 468. 156 ibid. 157 Pacholska (n 118) 104. 158 ibid. 159 ibid. 160 ibid. 161 See text to n 66.
