Articles on State Responsibility

In 2001, the UN International Law Commission – a body in charge of ‘codification’ and ‘progressive development’ of public international law – adopted the Articles on State Responsibility. One of these Articles lays down the rule that a State ‘which aids or assists another State in the commission of an internationally wrongful act’ is responsible for doing so, or rather, is responsible for complicity, if

• (a) it had knowledge of the circumstances of that wrongful act and
• (b) that act would be wrongful if committed by the assisting State.

The War on Terror

The year 2001 also marks the 9/11 terrorist attacks, in response to which the US announced the ‘war on terror’ and implemented the ‘extraordinary rendition programme’. This involved the abduction, detention, and interrogation – which in practice often amounted to torture – of mainly Arab-Muslim men allegedly guilty of terrorism, some of whom are still held in Guantánamo Bay without charge. Many States assisted the US, and some have been held responsible before the European Court of Human Rights for their complicity in torture or ill-treatment and arbitrary and unlawful detentions (see, e.g., here). This line of case law prompted Joëlle to examine the applicable legal frameworks that can serve as a basis for State responsibility.

Of course, States can lawfully assist other States for the purpose of counter-terrorism, as well as for migration control or (inter)national security. But what happens when the latter cause very serious harm, such as torture, war crimes, or genocide? When will the former incur responsibility for their contributions, and what obligations do States have when they assist States – or non-State actors – in the first place?

Complicity and other rules

Joëlle’s thesis analyses the general complicity rule as well as a number of other rules in selected treaty regimes, ranging from the Genocide Convention to the Arms Trade Treaty and the European Convention on Human Rights. As the threshold for complicity is quite high and complicity can only be established once the harm has occurred, other legal rules are also considered, such as, e.g., rules on arms transfers. By bringing all these rules together, the thesis aims to present a clearer picture of which rules apply when States assist other actors in volatile situations, and how these rules interrelate. The thesis also argues how human rights treaties – which traditionally apply when the victim was on the territory of the State in question – could be interpreted so as to cover situations of cross-border complicity too.