Modelo CANVAS

The element o f intention represents the m ost troublesome aspect o f the obligation not to aid and assist.111 Article 16 only speaks about knowledge o f the circumstances which equates to awareness. This reference, at first sight, marks an evolution o f die w ork o f the ILC in 1978 where the intention element was specified in Article 27-the article on derived responsibility at the time- and the commentaries made clear that an intention element was required, thus putting to the test the objective nature o f State responsibility in international law.112 The aid and assistance had to be rendered with a view to its use in committing the principal internationally wrongful act (emphasis added).113

110 For the prohibition o f aggression to be considered as ju s cogens norm, see: J. Crawford, note 5 above, p. 246 and Military and Paramilitaries Activities In and Against Nicaragua (Nicaragua v. United States of America), ICJ Rep. (1986), pp. 100-101 (para. 190).

111 K. Nahapetian, “Confronting State Complicity in International Law” (2002-2003) 99 UCLA J. In ti Law & Foreign Affairs 99-127, p. 105.

112 According to the theory o f objective responsibility as opposed to the notion o f subjective responsibility, the responsibility o f a State is engaged w hen it has breached an international obligation. O ne does not need to prove a fault, negligence or intention on its part The theory o f objective responsibility has been endorsed by m ost authors, tribunals and the ILC in its work on State responsibility. I. Brownlie, System of the Lam of the Nations, State Responsibility, Part I, (Oxford, 1983) and J. Crawford, S. O lleson and J. Peel, note 18 above, p. 459.

In his commentaries, Crawford reiterates the intention element which is added to the necessity for the assisting State to have been aware o f the circumstances.114 However, the relationship between awareness and intent appears questionable. W hy are the two conditions specified independently when there cannot obviously be intent without awareness? Possibly the ILC intended to reassure some States which were eager to emphasise the intention requirement in the obligation not to aid and assist. However, for some authors, the combination o f awareness and intent had the effect o f increasing rather than decreasing confusion.115 Possibly the ILC intended to find a compromise on this issue because the range o f opinions on the obligation not to aid and assist covered the non-existence o f the obligation (Switzerland116) to its existence even in cases o f mere negligence (Netherlands and D enm ark117) with, in the middle, the supporters o f the obligation with an intention requirement. Nonetheless, one can legitimately wonder whether State responsibility can still be engaged when the aiding State had no intention to contribute to the act but was only aware o f the circumstances.

Nonetheless, the academic literature on the subject unanimously emphasises the irrelevance o f the intention requirement. Quigley, who wrote the first article on complicity in relation to the work o f the ILC on State responsibility, advocates the inappropriateness o f a too stringent culpa requirement because it is often difficult to determine the state o f mind o f a State and furthermore, in m ost situations where a receiving State commits an international violation, the aiding State does not desire the illegal result.118 Contrary to Quigley, Graefrath argues that the intent requirement should be demonstrated for plain violations o f international law whereas intention should be

114 J. Crawford, note 5 above, p. 149. 115 K. Nahapetian, note 111 above, p. 106.

116 Comments and Observations Received From Governments: Report of the International Lain Commission to the General Assembly, F if thy Third Session, (1998), U .N. D oc. A /C N .4 /4 8 8 , p. 76.

117 Comments and Observations received From Governments: Report of the International Taiv Commission to the General Assembly, Fifthy Third Session, (2001), U .N. D oc. A /C N .4 /5 1 5 , p. 27.

118 J. Quigley, “Complicity in International Law: A N ew Direction in the Law o f State Responsibility” (1986) 57 British Yearbook o f International Law 77-131, p. 111.

presumed in cases o f commission o f a crime. More precisely, when an organ o f the international community, and principally an organ o f the UN , has established that an act poses a danger to international peace, assistance to the perpetrators o f this act is an act o f complicity although the aiding State proves that it had not acted intentionally or that its assistance has been given for purely humanitarian reasons.119 Nahapedan advocates the incorporation o f a rebuttable presum ption o f intent in the ILC Articles.120 To corroborate her arguments, she cites the criticisms in the General Assembly Sixth Committee which noted that requiring “knowledge o f the circumstances” in Article 16 seemed inappropriate because o f the objective nature o f State responsibility in international law; second, that the intent requirement is almost impossible to prove; and finally, that it does not make sense in cases o f serious violations o f international law when the international community is fully aware o f the circumstances.121 Furthermore, she claims that States can still be held accountable for separate treaty violations o f the International Covenant on Civil Political Rights, the 1949 Geneva Conventions, the UN Charter and the Genocide Convention not only because o f the obligations o f the States party to these treaties n ot to defeat the object and purposes o f these conventions, but also because o f specific provisions in these treaties requiring a positive conduct o f States in the conduct o f their foreign policies. Finally, Boivin dismisses the intention requirement stating that the objective o f this requirement is to ensure that the aid had effectively contributed to the commission o f the violation o f international law.122 She rightly states that the formulation o f an intention requirement is not realistic because it would fall foul o f the fact that in the case o f arms trade, the motivations o f States are m ost o f the time financial and not political.

119 B. Graefrath, “Complicity in the Law o f International Responsibility” (1996) Revue Beige de Droit International 370-380, pp. 376-377.

120 K. Nahapetian, note 111 above, p. 111. 121 Ibid., p. 110.

The replacement o f the intent requirement with awareness is a realistic solution. W ith a too strident intention requirement, only a few cases could fall into the scope o f aid and assistance i.e., straightforward cases where the intent requirement is inevitably present like the ones envisaged by the ILC in 1978 and then in 2001 (sale o f arms and use o f territory for an act o f aggression). The increasing interdependence o f States’ relationships and actions with one another increases the likeliness o f cases o f derived responsibility. It is crucial to define correctly and realistically the obligation not to aid and assist and in general the concept o f complicity in international law —as the next chapter demonstrates.

5. C onclusion.

This chapter has offered a detailed overview o f the obligations spelled out in Article 41 o f the ILC Articles on State Responsibility. While the existence o f an obligation to cooperate is subject to progressive development, the obligation not to recognise and the obligation not to aid and assist form part o f customary international law. The minimum obligation in the words o f Crawford is that the obligation not to recognise aims at preventing the consolidation o f an illegal situation. However, to be really efficient, the enforcement o f the duty not to recognise m ust be accompanied by parallel initiatives in order to put an end to a violation o f international law. In this respect, the obligation to cooperate finds its relevance. The combination o f the two is an efficient means to put an end to an illegal act.

However the analysis o f the content o f the obligations set in Article 41 raises several questions. First o f all, one can legitimately wonder whether the characterisation o f an obligation as peremptory or erga omnes justifies the establishment o f a differentiated

regime o f responsibility. As seen in this chapter, the rationale o f the obligation not to recognise is to bar the entrenchm ent o f an illegal situation. The qualification o f the nature o f the violation does not have much importance. The obligation not to aid and assist in Article 41 is the replica o f the obligation o f Article 16 which applies to plain violations o f international law. Finally, the difficulties surrounding the enforcement o f the obligation to cooperate to put an end to a violation o f an obligation arising from a perem ptory norm o f international law questions the feasibility o f a differentiated regime o f responsibility. It can be contended that the categorisation o f the three obligations as a compulsory response to a violation o f an obligation arising under a perem ptory norm of international law is a way to emphasize priority in the respect o f some legal obligations. The nature o f the obligation is not necessarily the source o f a differentiated regime o f

responsibility. Erga omnes and ju s cogens are concepts that echo the use o f the prescriptions o f international law as a call for solidarity. They reflect a vision o f what international law should be, o f the world we should be living in because they place emphasis on some values.123

Secondly, the conclusion o f the second chapter questioned whether the prescription o f the law o f State responsibility could shed light on the content o f com m on Article 1 o f the Geneva Conventions. Undoubtedly, com m on Article 1 m ust be read in light o f the three obligations listed in Article 41. The obligation to ensure respect entails an obligation not to aid and assist and not to recognize. The obligation set in Article 89 substantially poses the same issue as the obligation to cooperate. However, the study o f the obligations set in Article 41 did not shed light on the obligation n ot to encourage the

123 Criticisms on the existence o f erga omnes or ju s cogens obligations have been sometimes harsh. For instance, for Koskenniemi, ju s cogens and erga omnes obligations are “two latin expressions which have no clear references in this world but evoke a nostalgia for such reference and create a community out o f such a nostalgia”. M. Koskenniemi, “International Law in Europe: Between Tradition and Renewal” (2005) 16 EJIL 113-124, p. 122.

commission o f a violation o f humanitarian law. This obligation certainly does not equate with the obligation not to aid and assist which has been defined in very narrow terms. Incitement in the commission o f a violation o f international law was explicitly set aside from the study o f the ILC.124

This last remark leads to the final point. W hen the ILC intended to codify the obligation not to aid and assist, it delimited the scope o f the obligation in very narrow terms. It wilfully left aside other cases o f involvement o f a State in the commission o f a violation o f international law by another State. The next chapter demonstrates that breaches o f the obligation not to recognise and not to aid and assist are not the only instances where a State participates, reinforces and gives incentives for the commission and the perpetuation o f an illegal act committed by another State. It offers an account o f other situations o f derived responsibility not covered by this article and as such tests the framework o f third States obligations offered by the International Law Commission.

Chapter Three

T h e Contribution o f Third States to the C om m ission o f a V iolation o f International Law or the Perpetuation o f Other Violations o f International Law:

G oing B eyond the Framework o f the ILC.

The previous chapter established that from the obligations listed in Article 41 o f the ILC Articles on State responsibility, both the duty not to recognise and the obligation not to aid and assist, are customary obligations. However, one can wonder whether the framework offered by Article 41 grasps the entire ranges o f attitudes, actions and inactions o f States to contribute to the commission or the perpetuation o f violations o f international law committed by another State. In the commentaries, as well as in the second report on State responsibility, the rapporteur lists other cases o f derived responsibility, or participation o f another State in the commission o f a violation o f international law which are not limited to issues o f aid and assistance.1 Some o f these omissions have already been tackled by the Commission in the Articles, such as, for instance direction, control and coercion which are covered by Articles 17 and 18 o f the ILC Articles on State Responsibility.2 Furthermore, in his commentaries, the rapporteur mentions two cases o f derived responsibility or participation o f another State in the commission o f a violation o f international law which were not taclded in the draft. They are the duty o f due diligence and the obligation emerging from the Soering case.3 The

1 Second report on State Responsibility, International 'Law Commission, Fifty First session, 1st April 1999, A /C N .4 /4 9 8 /Ackl.l, p. 3 (hereinafter Second report on State Responsibility, Fifty First Session) and J. Crawford, The International Law Commission's Articles on State Responsibility, Introduction, Text and Commentaries, (Cambridge, N ew York 2002), pp. 145-146.

2 “Article 17. Direction and control exercised over the commission of an internationally wrongful act.

A State which directs and controls another State in the commission o f an internationally wrongful act by the latter is internationally responsible for that act if:

(a) That State does so with knowledge o f the circumstances o f the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State”.

“Article 18. Coercion of another State

A State which coerces another State to commit an act is internationally responsible for that act if: (a) The act would, but for the coercion, be an internationally wrongful act o f the coerced State; and (b) The coercing State does so with knowledge o f the circumstances o f the act”.

3J. Crawford, note 1 above, p. 146 and Soering v. United Kingdom, judgment 7 July 1989, (1989) 11 EHRR 439.

present chapter gives an account o f both and it investigates whether the non-inclusion o f these situations in the draft leaves the door open to the possibility o f the existence o f other situations o f participative responsibility. As such it offers an account o f the emergence o f the obligation, in the context o f arms sales, to enquire about the hum an rights records o f the addressee State. T he chapter also raises the case o f the controversy o f the D utch battalion at Srebrenica and questions whether any principle o f international law can be inferred from this case. Finally, it offers a brief account o f the content o f the duty not to encourage the commission o f a violation o f international Jaw as stated by the International Court o f Justice in relation to Article 1 o f the Geneva Conventions in the 'Nicaragua case. Finally, the present chapter intends to establish a link between these different cases by offering a central role to the concept o f acquiescence in international law.

The object o f the present chapter is not to offer a non-exhaustive list o f cases o f responsibility o f States in the formal sense o f the term, i.e., the legal relationship that arises under international law from the wrongful act o f a State and which involves legal consequences such as cessation, non-repetition or the adoption o f counter-measures.4 It is an invitation to envisage cases and situations where a State can contribute to the commission and the perpetuation o f a violation o f international law com m itted by another State.