| Original Full Text | UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)State responsibility for complicity in and other contributions to internationalcrimes and serious human rights violationsTrampert, J.A.Publication date2024Document VersionFinal published versionLink to publicationCitation for published version (APA):Trampert, J. A. (2024). State responsibility for complicity in and other contributions tointernational crimes and serious human rights violations. 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Youwill be contacted as soon as possible.Download date:13 Jan 2025State Responsibility for Complicityin and Other Contributions toInternational Crimes andSerious Human Rights ViolationsJoëlle A. TrampertJoëlle A. TrampertState Responsibility for Complicity in and Other Contributionsto International Crimes and Serious Human Rights Violations State Responsibility for Complicity in and Other Contributions to International Crimes and Serious Human Rights Violations Joëlle A. Trampert PROEF PS Joelle Trampert.job_08/28/2024_1A State Responsibility for Complicity in and Other Contributions to International Crimes and Serious Human Rights Violations PhD Dissertation University of Amsterdam, Faculty of Law Cover and printing: HAVEKA | www.haveka.nl © 2024 Joëlle A. Trampert All rights reserved PROEF PS Joelle Trampert.job_08/28/2024_1B State Responsibility for Complicity in and Other Contributions to International Crimes and Serious Human Rights Violations ACADEMISCH PROEFSCHRIFT ter verkrijging van de graad van doctor aan de Universiteit van Amsterdam op gezag van de Rector Magnificus prof. dr. ir. P.P.C.C. Verbeek ten overstaan van een door het College voor Promoties ingestelde commissie, in het openbaar te verdedigen in de Aula der Universiteit op woensdag 9 oktober 2024, te 11.00 uur door Joëlle Alexandra Trampert geboren te Oxford PROEF PS Joelle Trampert.job_08/28/2024_2APromotiecommissiePromotor: prof. dr. mr. G.K. Sluiter Universiteit van Amsterdam Copromotores: dr. R. van Alebeek Universiteit van Amsterdamprof. dr. mr. J.E.B. Coster van Voorhout Vrije Universiteit Amsterdam Overige leden: prof. mr. P.A. Nollkaemper Universiteit van Amsterdamprof. dr. Y.M. Donders Universiteit van Amsterdammr. dr. A.M. de Hoon Universiteit van Amsterdamdr. M. Jackson Oxford Universityprof. dr. H. Duffy Universiteit Leidenprof. dr. C.M.J. Ryngaert Universiteit UtrechtFaculteit der Rechtsgeleerdheid PROEF PS Joelle Trampert.job_08/28/2024_2B 5 TABLE OF CONTENT TABLE OF CONTENT ........................................................................................................................ 5 ABBREVIATIONS ............................................................................................................................... 7 NOTE ON FUNDING ........................................................................................................................... 9 CHAPTER 1. INTRODUCTION ...................................................................................................... 11 1.1. INTRODUCING THE PROBLEM ............................................................................................ 11 1.1.1. Extraordinary renditions, torture, and arbitrary detentions .............................................. 11 1.1.2. Migration control and push-backs by proxy ...................................................................... 12 1.1.3. Arms transfers linked to international crimes .................................................................... 14 1.2. RESEARCH QUESTION AND CONCEPTS .............................................................................. 16 1.2.1. Complicity and other contributions .................................................................................... 17 1.2.2. The principal violation and the principal actor ................................................................. 20 1.2.3. The extraterritorial or cross-border context ...................................................................... 22 1.3. METHOD, SOURCES AND STRUCTURE ............................................................................... 23 1.3.1. Method and interpretation.................................................................................................. 23 1.3.2. Sources and structure ......................................................................................................... 24 1.4. CONTRIBUTION AND INSPIRATION .................................................................................... 27 CHAPTER 2. THE LAW OF STATE RESPONSIBILITY ............................................................ 29 INTRODUCTION ................................................................................................................................ 29 2.1. THE GENERAL COMPLICITY RULE REFLECTED IN ARTICLE 16 ASR .................................... 29 2.1.1. The origins and status of the general complicity rule ........................................................ 29 2.1.2. The nature and scope of the general complicity rule ......................................................... 33 2.1.3. The constitutive elements of the general complicity rule ................................................... 42 2.2. THE NON-ASSISTANCE RULE REFLECTED IN ARTICLE 41(2) ASR......................................... 63 2.2.1. The threshold and status of the non-assistance rule .......................................................... 63 2.2.2. The nature and scope of the non-assistance rule ............................................................... 68 2.2.3. The constitutive elements of the non-assistance rule ......................................................... 71 2.3. INTERIM CONCLUSION ............................................................................................................. 76 CHAPTER 3. THE GENOCIDE CONVENTION, THE TORTURE CONVENTION, AND THE ILC’S DRAFT ARTICLES ON CRIMES AGAINST HUMANITY .................................... 79 INTRODUCTION ................................................................................................................................ 79 3.1. THE GENOCIDE CONVENTION ................................................................................................. 80 3.1.1. The implied complicity rule in the Genocide Convention .................................................. 80 3.1.2. The ICJ’s approach to responsibility in the Bosnian Genocide case ................................. 82 3.1.3. The constitutive elements of complicity and failing to prevent compared ......................... 84 3.1.4. Responsibility for involvement in between complicity and failing to prevent .................... 90 3.2. THE TORTURE CONVENTION ................................................................................................... 94 3.2.1. An implied complicity rule in the Torture Convention ....................................................... 94 3.2.2. The CmAT’s decision on admissibility in M.Z. v Belgium ................................................. 98 3.2.3. The conditions of refoulement and complicity compared................................................. 100 3.2.4. Responsibility for refoulement versus responsibility for complicity ................................ 104 3.2.5. State involvement in conduct of non-State actors............................................................. 106 3.3. THE ILC’S DRAFT ARTICLES ON CRIMES AGAINST HUMANITY ......................................... 108 3.3.1. The implied complicity rule in the DACAH ...................................................................... 108 3.3.2. The prohibition of refoulement ......................................................................................... 110 3.3.3. Two obligations to prevent ............................................................................................... 111 3.3.4. The obligation to establish liability of legal persons ....................................................... 115 3.4. INTERIM CONCLUSION ........................................................................................................... 116 PROEF PS Joelle Trampert.job_08/28/2024_3A 6 CHAPTER 4. THE 1949 GENEVA CONVENTIONS AND THE ARMS TRADE TREATY . 119 INTRODUCTION .............................................................................................................................. 119 4.1. THE 1949 GENEVA CONVENTIONS ........................................................................................ 119 4.1.1. The overarching obligation to ensure respect for IHL ..................................................... 120 4.1.2. The prohibition of assistance in violations of IHL ........................................................... 123 4.1.3. An implied obligation to ensure respect by corporations ................................................ 128 4.2. THE ARMS TRADE TREATY ................................................................................................... 130 4.2.1. The content and scope of the transfer prohibitions .......................................................... 130 4.2.2. The knowledge element and the risk assessment criteria ................................................. 134 4.2.3. Responsibility for breaching the transfer prohibitions and complicity ............................ 140 4.3 INTERIM CONCLUSION ............................................................................................................ 141 CHAPTER 5. THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.............................. 143 INTRODUCTION .............................................................................................................................. 143 5.1. JURISDICTION IN HUMAN RIGHTS TREATIES ........................................................................ 143 5.2. THE EUROPEAN CONVENTION ON HUMAN RIGHTS ............................................................. 146 5.2.1. The ECHR’s extraterritorial application ......................................................................... 147 5.2.2. Refoulement, acquiescence, connivance, and complicity ................................................. 156 5.2.3. Conditions for complicity ................................................................................................. 179 5.2.4. Responsibility for complicity and other contributions in an extraterritorial context ....... 184 5.3. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ............................... 193 5.3.1. The ICCPR’s extraterritorial application ........................................................................ 193 5.3.2. Refoulement, acquiescence, and complicity ..................................................................... 204 5.3.3. Conditions for complicity ................................................................................................. 211 5.3.4. Responsibility for complicity and other contributions in an extraterritorial context ....... 213 5.4. INTERIM CONCLUSION ........................................................................................................... 216 CHAPTER 6. CONCLUSION ......................................................................................................... 221 6.1. COMPLICITY AND OTHER CONTRIBUTIONS: FOUR CATEGORIES OF RULES ....................... 221 6.1.1. General, implied, and regime-specific complicity rules ................................................... 221 6.1.2. Non-assistance rules: contributions below complicity ..................................................... 224 6.1.3. Risk-based non-assistance rules: the ‘transfer prohibitions’ ........................................... 225 6.1.4. Other relevant rules: regulation and investigation .......................................................... 226 6.2. ASSIGNING RESPONSIBILITY TO REFLECT THE DEGREE OF INVOLVEMENT ....................... 227 6.3. APPLYING IHRL TO COMPLICITY IN AN EXTRATERRITORIAL CONTEXT........................... 229 6.4. OUTLOOK ................................................................................................................................ 231 SUMMARY AND SAMENVATTING ............................................................................................. 233 ACKNOWLEDGEMENTS ............................................................................................................. 247 OVERVIEW OF SOURCES ........................................................................................................... 251 BIBLIOGRAPHY .............................................................................................................................. 251 TREATIES, EU LEGISLATION, OTHER AGREEMENTS................................................................... 270 JURISPRUDENCE AND TREATY BODY OUTPUT ............................................................................. 272 IO, NGO, AND NATIONAL DOCUMENTS ....................................................................................... 279 PROEF PS Joelle Trampert.job_08/28/2024_3B 7 ABBREVIATIONS ASR Articles on State Responsibility ATT Arms Trade Treaty CA1 Common Article 1 of the 1949 Geneva Conventions CAT UN Convention against Torture CIA US Central Intelligence Agency CmAT UN Committee Against Torture CRC UN Committee on the Rights of the Child DACAH Draft Articles on Crimes against Humanity ECHR European Convention on Human Rights ECmHR European Commission of Human Rights ECtHR European Court of Human Rights EU European Union FRY Federal Republic of Yugoslavia, later Serbia and Montenegro HRC UN Human Rights Committee IACtHR Inter-American Court of Human Rights ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICL International Criminal Law ICRC International Committee of the Red Cross ICTY International Criminal Tribunal for the former Yugoslavia IHL International Humanitarian Law IHRL International Human Rights Law ILC UN International Law Commission MLA Mutual Legal Assistance NATO North Atlantic Treaty Organization NGO Non-Governmental Organisation NSA Non-State Actor PIL Public International Law UK United Kingdom of Great Britain and Northern Ireland UN United Nations UNGPs UN Guiding Principles on Business and Human Rights US United States of America VCLT Vienna Convention on the Law of Treaties VRS Army of the Republika Srpska (Vojska Republike Srpske) PROEF PS Joelle Trampert.job_08/28/2024_4A PROEF PS Joelle Trampert.job_08/28/2024_4B 9 NOTE ON FUNDING This doctoral dissertation is part of the ‘Rethinking the Outer Limits of Secondary Liability for International Crimes’ research project, which runs from 1 September 2018 to 1 September 2025 and received funding from a Dutch Research Council (NWO) Vici grant (016.Vici.185.036). PROEF PS Joelle Trampert.job_08/28/2024_5A PROEF PS Joelle Trampert.job_08/28/2024_5B 11 CHAPTER 1. INTRODUCTION 1.1. Introducing the problem States often assist other actors. Their motivations for doing so will vary: perhaps they wish to support the other actor for political, military, or economic reasons, and perhaps they believe this will make the world a fairer, safer, or wealthier place. It is hard to imagine a world where States do not cooperate or assist other actors across their borders. Often, this will be perfectly lawful and will not cause any harm. But this is not always the case, as is evidenced by many of the atrocities playing out in the world today. The devastating loss of life in the Gaza Strip is the direct result of Israel’s conduct, but Israel has received support from various States, including in the form of military goods. The repeated loss of life in the Mediterranean Sea is caused by a network of various actors, where Europe’s policy to prevent people from reaching Europe plays a significant part. The abduction, torture, and arbitrary detention of alleged terrorists, some of whom are still being held in Guantánamo Bay to this day, has also been facilitated and supported by other States. In order to better understand the legal limits of such types of assistance, especially in a cross-border context, this study focuses on the role and the responsibility of assisting States under public international law.1 These situations, characterised by varying degrees of geographical remoteness between the victim(s) and the assisting State, are central to this study. 1.1.1. Extraordinary renditions, torture, and arbitrary detentions In response to the attacks of 11 September 2001, the US announced its ‘war on terror’ and implemented the so-called extraordinary rendition programme.2 Under the presidency of George W Bush, the US Central Intelligence Agency (CIA) abducted hundreds of individuals – mainly Muslim men – in various States and transferred them to other States where they were interrogated and secretly detained. All this was meant to take place outside the purview of the law and without any human rights constraints, and while the purpose of the programme was supposedly to bring those responsible to justice and to uphold democratic rights and freedoms, its design and execution undermined every aspect of the rule of law. The abductions, renditions, and interrogations were carried out in similar ways, and physical and 1 I follow the UN legal parlance of ‘responsibility’ instead of ‘liability’, as the former is mostly used to designate the legal accountability (i.e., ‘liability’ instead of ‘answerability’) of States for wrongful acts under international law. See also J Crawford and J Watkins, ‘International Responsibility’ in S Besson and J Tasioulas (eds) The Philosophy of International Law (OUP 2010) 283-285. 2 Also referred to as the ‘high value detainee programme’ or ‘enhanced interrogation programme’. An ‘extraordinary rendition’ has been defined as the ‘extrajudicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment.’ See Babar Ahmad and Others v the United Kingdom, App Nos 24027/07, 11949/08, and 36742/08 (decision) (ECtHR, 6 July 2010) para. 113 and El-Masri v the Former Yugoslav Republic of Macedonia [GC] App No. 39630/09 (ECtHR, 13 December 2012) para. 221. PROEF PS Joelle Trampert.job_08/28/2024_6A 12 psychological violence was an intrinsic part of each phase.3 Many have been subjected to torture or other ill-treatment. Some have been held in Guantánamo Bay for over two decades without charge; others have been charged with crimes which carry the death penalty.4 The US could not, and did not, act alone. Many States facilitated the US, either by apprehending suspects or sharing information which would lead to their capture, by allowing the use of their airports for rendition flights, or of their territory for secret detention sites.5 Some of these secret detention or black sites were located in Europe, namely in Poland, Romania, and Lithuania. In a series of judgements delivered between late 2012 and early 2024,6 the European Court of Human Rights (ECtHR or Court) has found these States, as well as North Macedonia and Italy, responsible for their role in the extraordinary rendition programme, which breached the European Convention on Human Rights (ECHR or Convention).7 The Court framed these States’ responsibility as ‘complicity’, a term which is used colloquially as well as in the literature. It also referenced Article 16 of the United Nations (UN) International Law Commission (ILC)’s draft Articles on Responsibility of States for Internationally Wrongful Acts (ASR), which codifies the notion of responsibility for complicity in international law. 8 On the basis of this rule, a State ‘which aids or assists another State in the commission of an internationally wrongful act’ is responsible for doing so if it had (a) knowledge of the circumstances of that wrongful act and (b) the act in question would be wrongful if committed by that State. Besides the fact that the ‘other State’ and the individuals most responsible have not been held to account, other States which assisted the US, e.g. by sharing information, have not been found responsible either. 1.1.2. Migration control and push-backs by proxy It is the prerogative of States to control their borders; they decide who enters, who stays, and who leaves. In the European Union (EU) and Schengen Area, EU citizens, non-EU residents, and visitors (e.g., those 3 See for an independent report S Raphael, C Black, and R Blakeley, ‘CIA Torture Unredacted’ (2019) <https://www.therenditionproject.org.uk/unredacted/the-report.html>. 4 See ‘The Guantánamo Docket’, The New York Times, updated 12 February 2024 <https://www.nytimes.com/interactive/2021/us/guantanamo-bay-detainees.html> accessed 14 February 2024. 5 See again ECtHR El-Masri and see M Hakimi, ‘The Council of Europe Addresses CIA Rendition and Detention Program’ (2007) 101(2) American Journal of International Law 442, 444. 6 Besides El-Masri, these are Husayn (Abu Zubaydah) v Poland, App No. 7511/13 (ECtHR, 24 July 2014), Al Nashiri v Poland, App No. 28761/11 (ECtHR, 24 July 2014), Nasr et Ghali c Italie, App No. 44883/09 (ECtHR, 23 February 2016), Abu Zubaydah v Lithuania, App No. 46454/11 (ECtHR, 31 May 2018), Al Nashiri v Romania, App No. 33234/12 (ECtHR, 31 May 2018), and Al-Hawsawi v Lithuania, App No. 6383/17 (ECtHR, 16 January 2024). 7 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 (ECHR or Convention). 8 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries. Yearbook of the International Law Commission 2001, Vol. II(2), 27 (ASR). Text reproduced as it appears in the Annex to UN General Assembly Resolution 56/83 of 12 December 2001 and corrected by UN Doc A/56/49(Vol.I)/Corr.4. PROEF PS Joelle Trampert.job_08/28/2024_6B 13 with a visa) can move freely, others must avail themselves to the EU’s immigration system. The EU’s external borders are controlled by individual member States with the support of the European Border and Coast Guard Agency (Frontex). In order to ‘tackle the Central Mediterranean route’, the EU has also sought to cooperate with ‘external partners’, most notably with Libya, from where many people embark on the dangerous journey across the Mediterranean Sea to reach Europe.9 Early 2017, Italy reached an agreement with Libya, ‘[i]n order to achieve solutions regarding some matters that negatively affect the Parties, including the clandestine immigration phenomenon and its impact, the fight against terrorism, human trafficking and fuel smuggling.’10 To this end, Italy provides ‘technical and technological support’ to the Libyan coastguard,11 which in exchange intercepts people at sea and returns them to Libya.12 Italy also funds Libyan reception centres and trains personnel working there, and part of this funding comes from the EU.13 In 2020, Malta concluded a deal with Libya too, which focuses on ‘combatting illegal immigration’ and ‘human trafficking activities’.14 It should go without saying that irrespective of someone’s status according to EU law or international refugee law, everyone at sea has human rights. Many interceptions carried out by the Libyan coastguard do not comply with basic human rights, including the right to life and the absolute prohibition of torture, other ill-treatment, and refoulement.15 By definition, any return to Libya falls foul of the prohibition of refoulement. Those who are returned to or do not leave Libya are detained there, and the Independent Fact-Finding Mission on Libya has reported that the abuses suffered by people held in the detention centres qualify as crimes against humanity.16 The Mission has also found that 9 European Council and the Council of the European Union on EU migration and asylum policy, ‘Migration flows on the Central Mediterranean route’ <https://www.consilium.europa.eu/en/policies/eu-migration-policy/central-mediterranean-route/> reviewed 14 February 2024, accessed 14 February 2024. 10 Memorandum of Understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and the Italian Republic, signed in Rome, 2 February 2017. For the Italian version, see <https://www.governo.it/sites/governo.it/files/Libia.pdf>, for an English translation, see <https://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf>. The agreement has been renewed automatically in February 2020 and in February 2023, see Article 8 of the MOU. See also G Tranchina / Human Rights Watch, ‘Italy Reups Funding to Force Migrants Back to Libya’, 1 February 2023, <https://www.hrw.org/news/2023/02/01/italy-reups-funding-force-migrants-back-libya> and V Moreno-Lax, ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control – On Public Powers, S.S. and Others v. Italy, and the Operational Model’ (2020) 21 German Law Journal 385, 390-396, for an account of the Italy-Libya relations. 11 Article 1(c) of the MOU. 12 See also A Pijnenburg, ‘From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasbourg?’ (2018) European Journal of Migration 396, 413-421, for an analysis of Italy’s conduct under the heading of complicity. 13 Articles 2(2) and 4 of the MOU. 14 Memorandum of Understanding between the Government of National Accord of the State of Libya and the Government of the Republic of Malta in the field of combatting illegal immigration, signed in Tripoli, 28 May 2020. For the English version, which is the original, see <https://www.statewatch.org/media/documents/news/2020/jun/malta-libya-mou-immigration.pdf>. 15 There is a vast amount of literature on this. See on violations of the right to life in particular LM Komp, Border Deaths at Sea under the Right to Life in the European Convention on Human Rights (Routledge 2023). 16 Report of the Independent Fact-Finding Mission on Libya, UN Doc A/HRC/50/63, 31 August 2022, para. 75. PROEF PS Joelle Trampert.job_08/28/2024_7A 14 Libya as well as third States ‘have been on notice for years regarding the ongoing widespread and systematic attacks on migrants, including violations occurring at sea, in detention centres, along trafficking and smuggling routes and in trafficking hubs’, yet the crimes and the cooperation continue. The Mission has concluded that it has ‘grounds to believe that the [EU] and its member States, directly or indirectly, provided monetary and technical support and equipment, such as boats, to the Libyan Coast Guard (…) that was used in the context of interception and detention of migrants.’17 This raises the question if and how this ‘direct or indirect’ assistance can entail States’ responsibility. 1.1.3. Arms transfers linked to international crimes Another way in which States assist other actors is by providing them with arms or other military goods. This will often, but not necessarily, occur in the context of an armed conflict.18 Depending on the types of arms and how they are used, this can be the right thing to do. Most people agree that the supply of military goods to Ukraine following Russia’s full-scale invasion on 24 February 2022 is justified.19 Many people also agree that the UK’s decision to continue authorising arms exports to Saudi Arabia, which intervened in the non-international armed conflict in Yemen upon the government’s invitation, is problematic,20 as there is evidence that the Saudi-led coalition has used British-made arms in attacks against the civilian population, which may be in breach of international humanitarian law (IHL) and constitute war crimes.21 However, in June 2023, a UK Divisional Court dismissed a claim brought by Campaign Against Arms Trade challenging the UK’s decision to continue arms exports to Saudi Arabia, 17 Report of the Independent Fact-Finding Mission on Libya, UN Doc A/HRC/52/83, 20 March 2023, para. 46. See also para. 103(g), where the Mission calls on the international community and third States to ‘abide by the customary international law principle of non-refoulement and cease all direct and indirect support to Libyan actors involved in crimes against humanity and gross human rights violations against migrants, such as the Directorate for Combating Illegal Migration, the Stability Support Apparatus and the Libyan Coast Guard’. 18 Military or strategic goods such as patrol vessels, drones, and radar systems are also used in the context of migration and border control, see e.g. V Moreno-Lax and M Lemberg-Pedersen, ‘Border-Induced Displacement: The Ethical and Legal Implications of Distance-Creation through Externalization’ (2019) Questions of International Law, Zoom-in 56, 5, 16. 19 For references to and a discussion of the legality of (Western) support for Ukraine, see e.g. T Hamilton, ‘Defending Ukraine with EU Weapons: Arms Control Law in Times of Crisis’ (2022) 1(3) European Law Open 635, KJ Heller and L Trabucco, ‘The Legality of Weapons Transfers to Ukraine Under International Law’ (2022) 13 Journal of International Humanitarian Legal Studies 251, and P Clancy, ‘Neutral Arms Transfers and the Russian Invasion of Ukraine’ (2023) 27 International and Comparative Law Quarterly 527. 20 See e.g. L Ferro, ‘Western Gunrunners, (Middle-)Eastern Casualties: Unlawfully Trading Arms with States Engulfed in Yemeni Civil War?’ (2019) Journal of Conflict & Security Law 1, O Hathaway, A Haviland, SR Kethireddy, A Yamamoto, ‘Yemen: Is the U.S. Breaking the Law?’ (2019) 10 Harvard National Security Journal 1, and A Stavrianakis, ‘Requiem for Risk: Non-knowledge and Domination in the Governance of Weapons Circulation’ (2020) 14 International Political Sociology 233. 21 See Report of the UN High Commissioner for Human Rights containing the findings of the Group of Eminent International and Regional Experts, UN Doc A/HRC/39/43, 17 August 2018, para. 108 and Annex IV, paras 5 and 14, Report of the Group of Eminent International and Regional Experts as submitted to the United Nations High Commissioner for Human Rights, UN Doc A/HRC/42/17, 9 August 2019, paras 92 and 96, and Report of the Group of Eminent International and Regional Experts on Yemen, UN Doc A/HRC/45/6, 28 September 2020, paras 102 and 105. On 7 October 2021, the UN Human Rights Council rejected a resolution to renew the mandate of the Group of Eminent Experts on Yemen. PROEF PS Joelle Trampert.job_08/28/2024_7B 15 because, in a nutshell, the government’s decision and assessment of the risks of future violations in light of past violations was not ‘irrational’.22 The purpose of this case was to establish the lawfulness of the decision in light of the arms control framework, not whether the UK bears responsibility in connection with any alleged past violations.23 Similar cases have been brought in other countries. In February 2024, a Dutch Court of Appeal ruled that the Netherlands’ decision to allow arms transfers to Israel after the attacks of 7 October 2023 and Israel’s military response, was unlawful under international arms control legislation.24 More concretely, the State’s decision not to halt the ongoing transfer of F-35 combat aircraft parts to Israel despite the clear risk that these aircraft, and therefore also the parts, might be used in the commission of serious violations of IHL, was unlawful, and the State has been ordered to cease all further deliveries to Israel.25 Besides questions on the content and scope of the applicable legal rules, i.e., rules under IHL, international arms control agreements, and other multilateral treaties, this judgement also raises the question what this means for the Netherlands’ responsibility in connection with violations which were committed between, say, November and February. The court did not engage with this in the judgement, but in their appeal brief, the claimants also invoked the prohibition of complicity in genocide as well as in other international legal norms, including IHL and international human rights law (IHRL).26 How do these rules interrelate, and if there is proof of violations being committed by Israel with the F-35s, what implications could this have for the Netherlands’ responsibility? In all these situations, one State’s conduct contributed to another State’s wrongdoing which constitutes an international crime or a serious human rights violation and causes grave and irreparable harm to one or more individuals. When does in principle lawful conduct become an unlawful contribution to the violations in question, and when does an unlawful contribution entail responsibility for complicity in those violations? What obligations do the assisting States have in volatile situations such as the ones described above? The situations above concern serious human rights violations, but does IHRL apply, and if so, how and to what extent? The fact that North Macedonia, Italy, Poland, Romania, and Lithuania have been found responsible for their involvement in the extraordinary rendition programme under the ECHR is important, but not all that surprising, as the applicability of the Convention as such was not really ever at issue. This is because the victims were all mistreated and detained in and transferred from 22 R (on the Application of Campaign Against Arms Trade) v Secretary of State for International Trade [2023] EWHC 1343 (Admin), 6 June 2023. 23 Id, paras 100-101. 24 Stichting Oxfam Novib and Others v the Netherlands, Court of Appeal of the Hague, ECLI:NL:GHDHA:2024:191, 12 February 2024. 25 Id, para. 5.29, 5.38, and 5.49. 26 The ‘Memorie van Grieven’ (in Dutch) can be accessed here: <https://www.prakkendoliveira.nl/nl/nieuws/2024/inz-gaza-zitting-turbo-spoedappel-van-oxfam-novib-pax-en-the-rights-forum-over-beeindigen-f-35-wapenexport-aan-israel-door-nederland-22-januari-2024>. I have saved a pdf copy. PROEF PS Joelle Trampert.job_08/28/2024_8A 16 these States’ territory, meaning that they were clearly within these States’ ‘jurisdiction’ in the sense of Article 1 ECHR.27 If an individual is within the assisting State’s jurisdiction, then the human rights treaties which that State is bound by apply. Whereas in the extraordinary rendition cases some victims were within the territorial borders – and hence the ‘jurisdiction’ – of a Council of Europe member State, many people crossing the Mediterranean Sea will not be within the destination States’ borders, which is in fact the very purpose of these States’ policies.28 In the arms transfer cases, the people suffering harm are far removed from the transferring States, but that does not mean that the latter bear no obligations concerning the former under international law. These obligations also deserve attention. Moreover, the notion of complicity in the law of State responsibility is not limited or conditioned by the assisting State’s borders or the victim’s physical location at all, but the conditions for complicity in the law of State responsibility remain unclear, and this basis for responsibility is not often used. This exacerbates the uncertainties and hinders the development of the norm. As the principal actors will not always be held liable, it is worth scrutinising the role and responsibility of these ‘secondary’ States. 1.2. Research question and concepts This leads to the following research question: how can international law assign responsibility to States for complicity in or other contributions to international crimes or serious human rights violations committed by other actors, especially extraterritorially? 27 The term ‘jurisdiction’ in Article 1 ECHR and other human rights treaties does not necessarily designate the concept of States’ jurisdiction in public international law. See M Milanovic, Extraterritorial Application of Human Rights Treaties – Law, Principles and Policy (OUP 2011) 21-41, especially at 33, and 52-53; M den Heijer and R Lawson, ‘Extraterritorial Human Rights and the Concept of “Jurisdiction”’ in M Langford, W Vandenhole, M Scheinin, W van Genugten (eds) Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (CUP 2013) 163; C Ryngaert, Jurisdiction in International Law (OUP 2015, 2nd edition) 5-10 and 22-27; E Roxstrom and M Gibney, ‘Human Rights and State Jurisdiction’ (2017) 18 Human Rights Review 129, 141-144; L Raible, Human Rights Unbound – a Theory of Extraterritoriality (OUP 2020) 117-118 and 161-166; and S Besson, ‘Extraterritoriality in International Human Rights Law: Back to the Jurisdictional Drawing Board’ in A Parrish and C Ryngaert (eds) Research Handbook on Extraterritoriality in International Law (Edward Elgar 2023) 274 and 282 and further. 28 See T Gammeltoft-Hansen, ‘Extraterritorial Human Rights Obligations in regard to Refugees and Migrants’ in M Gibney, G Erdem Türkelli, M Krajewski, W Vandenhole (eds) The Routledge Handbook on Extraterritorial Human Rights Obligations (Routledge 2022) 158 and K Gombeer and S Smis, ‘The Establishment of ETOs in the Context of Externalised Migration Control’ in the same volume at 170. See also A Pijnenburg, ‘Containment Instead of Refoulement: Shifting State Responsibility in the Age of Cooperative Migration Control?’ (2020) 20 Human Rights Law Review 306, 309-310: ‘although decisions such as Hirsi can be seen as evidence that international refugee and human rights law constrains migration control policies, they can also be said to indirectly drive and enable policy developments in a more regrettable way. Thus, recent developments in migration control suggest that ‘destination states are actively learning from past judicial interventions’ and intentionally design their policies so as to avoid triggering obligations.’ PROEF PS Joelle Trampert.job_08/28/2024_8B 17 The focus of this research is on the responsibility of States. An enquiry into the responsibility of a State starts with determining that State’s internationally wrongful act.29 A State’s conduct will constitute a wrongful act if the act or omission in question can be attributed to that State under international law and constitutes a breach of an international obligation.30 The starting point for this study is a State’s conduct which assists another actor in the latter’s wrongdoing, i.e., the commission of an international crime or serious human rights violation, especially outside the assisting State’s borders. The matter of attribution of conduct will often prove to be straightforward here, as the conduct in question can be directly traced back to the State’s own agents or organs, which acted or failed to act despite an obligation to do so.31 The matter of the breach is all the more important, as a State’s conduct will only be wrongful if it was not in conformity with what was required of that State pursuant to a particular legal obligation.32 The first step is therefore to establish which obligations States have when actors that they are cooperating with will likely commit or are already committing acts which constitute an international crime or a serious human rights violation, and how these relate to complicity. The applicable legal framework consists of a patchwork or a ‘network of rules’.33 The rules selected for this study, which I set out below, are analysed by examining the same or similar aspects, namely their conditions and scope. These conditions are the material element (does the conduct constitute a material act of assistance?), the nexus element (is there a link between the act of assistance and the principal violation?), and the cognitive, mental, fault, or knowledge element (was the assisting State aware of the commission of the principal violation and/or how it might contribute to it by its own act of assistance?). These conditions are analysed separately, but they are not easily detached in reality. The scope pertains to whether the rule in question is limited in any way, e.g. by the assisting State’s jurisdiction, and what a breach of the rule means for the State’s responsibility.34 This paragraph explains several key concepts included in the research question or terminology that I use throughout the thesis, namely ‘complicity’ and ‘other contributions’ (1.2.1), the ‘principal violation’ and the ‘principal actor’ (1.2.2), and what I mean by, and why I focus on, the extraterritorial context (1.2.3). 1.2.1. Complicity and other contributions States are responsible for ‘complicity’ in X if they knowingly contribute to the commission of X, and X would also be wrongful for the assisting State. For the ILC, the term ‘complicity’ was problematic due to its criminal law connotations, so it opted for the phrase ‘aid or assistance’ in the ASR.35 The 29 Article 1 ASR. 30 Article 2 ASR. 31 Article 4 ASR. Otherwise, see Articles 5 and 8 ASR. 32 Article 12 ASR. 33 HP Aust, Complicity and the Law of State Responsibility (CUP 2011) 376. 34 The effects of justifications and excuse are excluded from the study. See on this F Paddeu, Justification and Excuse in International Law – Concept and Theory of General Defences (CUP 2018) 66-70. 35 Cf ILC Commentary to Article 16 ASR, para. 11. PROEF PS Joelle Trampert.job_08/28/2024_9A 18 terms ‘aid’ and ‘assistance’ do not have a different meaning.36 I use the term ‘complicity’ instead of ‘aid or assistance’ because the former is used in the doctrine.37 Article 16 ASR reflects a general complicity rule of customary international law. As will be explained in Chapter 2, this rule presupposes that inherent in the obligation to refrain from committing genocide or torture is the obligation to refrain from assisting genocide or torture. If a State does provide assistance and the other conditions for complicity are met, that State will be responsible for its own wrongful act of assistance. In this sense, the rule reflected in Article 16 ASR has certain features of a primary rule or substantive obligation.38 At the same time, it is a form of responsibility assigned for a degree of involvement in the wrongdoing of another actor, which explains its inclusion in the ASR. The acts of assistance and notion of complicity central to this study concern help or support provided before or during the commission of the principal wrongful act. This includes assistance provided during a continuing violation; assistance provided after the fact is outside the scope of the study (and outside the scope of complicity too). The so-called aggravated responsibility regime, included in Articles 40 and 41 ASR, applies when a State commits a ‘serious breach’ of an obligation arising under a peremptory norm of general international law, i.e., a jus cogens norm.39 Consequently, all third States are obliged not to ‘render aid or assistance in maintaining [the] situation’ created by the serious breach of a jus cogens norm. This obligation is discussed in Chapter 2, but for now it should be noted that it applies ‘to the maintenance of the situation created by that breach, and (…) whether or not the breach itself is a continuing one.’40 Thus, when the serious breach is continuing in nature, the rule in Article 41(2) ASR is of relevance too. The other notions included in Article 41 ASR, namely the obligation to cooperate to bring a serious breach to an end (paragraph 1) and the obligation not to recognise as lawful a situation created by a serious breach (paragraph 2) are outside the scope. Complicity is to be distinguished from the other bases for responsibility in connection with the act of another State included in Part One, Chapter IV of the ASR, i.e., direction and control (Article 17 ASR) and coercion (Article 18 ASR). Assistance that amounts to complicity is also distinct from conduct that qualifies as directly causing or committing the principal violation in question, whether or not in concert with a plurality of States (Article 47 ASR). Scenarios where the assisting State’s support of an NSA reaches the level of control which renders the recipient a de facto organ of the State (Article 4 ASR) or 36 See Aust (2011) 197 and H Moynihan, ‘Aiding and Assisting: The Mental Element under Article 16 of the International Law Commission’s Articles on State Responsibility’ (2018) 67(2) International and Comparative Law Quarterly 455, 456. Cf ILC Yearbook 1999, Vol. I, 278, para. 25: ‘As to the necessity of using both verbs, while “assists” was marginally stronger than “aids”, which on its own could have the connotation of foreign aid programmes, the [Drafting] Committee had felt that the two terms complemented each other and had decided to retain them in the article and in the title’. 37 I do not use the term ‘indirect’ or ‘secondary’ responsibility / liability. ‘Secondary liability’ designates the legal accountability of States for the acts or debts of an international organisation of which they are a member, see ILC Commentary to Article 57 ASR, para. 5. 38 ILC Commentary to Part One, Chapter IV of the ASR, paras. 7-8. 39 See Articles 40 and 41 ASR. 40 ILC Commentary to Article 41 ASR, para. 11. PROEF PS Joelle Trampert.job_08/28/2024_9B 19 where that support reaches the level of direction or control which warrants attribution of conduct to the State (Article 8 ASR) are also excluded,41 as are situations where a State places one of its organs at the disposal of another State (Article 6 ASR) or where a State acknowledges and adopts another actor’s conduct as its own ex post facto (Article 11 ASR). Under the law of State responsibility, assistance or complicity is not a basis for attribution of conduct, but a basis for (attribution of) responsibility. While complicity was the starting point and is the main focus of this study, it is a narrow concept with some unclear conditions. Compared to positive obligations of conduct or due diligence, it is not often used in practice.42 Corten and Klein have even concluded that ‘complicity constitutes a notion whose usefulness is open to serious doubt’, given the fact that it has much stricter conditions and that all examples of complicity can be qualified as and thus subsumed by breaches of positive obligations of due diligence too.43 This is undoubtedly true; the threshold for complicity is high, and complicity in a wrongful act automatically means that the State failed to protect the rights of others, or failed to act with the required standard of care. But this is no reason to abandon the notion of complicity altogether and to use a broader obligation of conduct as a basis for responsibility instead. Moreover, precisely because complicity is reserved for a specific category of contributions or a particular degree of involvement in the wrongdoing of another actor, it is worth considering other types of contributions, and corresponding forms of responsibility, too. There are instances where the conduct of a State does not rise to the level of complicity proper, but still meaningfully contributed to the wrongdoing of another actor. By not limiting the research to complicity and including ‘other contributions’ too, the study can address conduct that meaningfully facilitates the commission of the principal wrong in a way that is evidently more than a failure to prevent or suppress. I do not define these ‘other contributions’ in the abstract. The difference between contributions that facilitate and failures to intervene is best illustrated by two ECtHR judgements and Contracting States’ responsibility for breaching positive obligations to protect human rights. In Women’s Initiatives Supporting Group and Others v Georgia, a case concerning discriminatory hate crimes, the Georgian authorities had not just failed to take measures to protect the people participating in an event on the International Day Against Homophobia from a violent homophobic mob, but the police present at the scene did nothing to prevent and even encouraged the violent counter-demonstrators to break the cordon intended to protect the demonstrators from mistreatment. The Court held Georgia responsible for a breach of Article 3 (the prohibition of torture 41 See for the relevant tests for the International Court of Justice (ICJ), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgement, ICJ Reports 2007, 43 (ICJ, 26 February 2077) paras 391-395 and 396-413. 42 Due diligence is a standard of care that is used to assess whether a State has adequately discharged its duties under international (human rights) law. See also D Shelton and A Gould, ‘Positive and Negative Obligations’ in D Shelton (ed.) The Oxford Handbook of International Human Rights Law (OUP 2013) 563 and further. 43 O Corten and P Klein, ‘The Limits of Complicity as a Ground for Responsibility, Lessons Learned from the Corfu Channel Case’ in K Bannelier, T Christakis, S Heathcote (eds) The ICJ and the Evolution of International Law, The Enduring Impact of the Corfu Channel Case (Routledge 2012) 334. PROEF PS Joelle Trampert.job_08/28/2024_10A 20 and other ill-treatment) in conjunction with Article 14 ECHR (the prohibition of discrimination).44 In Paul and Audrey Edwards v the United Kingdom, a case concerning inter-prisoner violence, the authorities had failed to protect the applicants’ son, who was killed in prison by another inmate. Medics, police, prosecution, and court staff had all failed to pass on information to the prison authorities about the dangerous and mentally ill inmate who was allocated to the same cell as the applicants’ son, and the screening process of that inmate upon his arrival had been inadequate. The UK was found responsible for a breach of Article 2 ECHR (the right to life).45 Clearly, while the UK’s negligence contributed to the deprivation of the detainee’s life, the State’s conduct cannot easily be framed as having facilitated or supported it, at least not to the extent that would come close to complicity. Georgia’s conduct, on the other hand, is not just an example of gross systemic failures, but of acquiescence and involvement in the principal violations. The case against Georgia is therefore within the scope of this project, while the case against the UK – and similar cases concerning failures to prevent and protect – is not. 1.2.2. The principal violation and the principal actor Without wanting to quantify or qualify what constitutes grave and irreparable harm, I have selected three ‘international crimes’ and three ‘serious human rights violations’ as the principal violations for this study. This study addresses the crime of genocide, crimes against humanity, and war crimes, and excludes the question of State responsibility for complicity in the crime of aggression.46 This is not because the jus ad bellum and the principle of neutrality are irrelevant, but their rationale is different: the jus ad bellum is more about respect for State sovereignty than respect for human rights.47 Of course, an unlawful use of force and the crime of aggression will practically always cause harm to individuals. But whenever this is the case, IHL, or the jus in bello, may apply, and IHRL will often apply too.48 These legal regimes have the protection of human dignity at their core. For the definitions of the three aforementioned international crimes, I follow the Rome Statute of the International Criminal Court,49 44 Women’s Initiatives Supporting Group and Others v Georgia, App Nos 73204/13 and 74959/13 (ECtHR 16 December 2021) paras 70-78. 45 Paul and Audrey Edwards v the United Kingdom, App No. 46477/99 (ECtHR, 14 March 2002) paras 57-64. 46 See on this M Jackson, Complicity in International Law (OUP 2015) 136-147. 47 In other words, the prohibition of the use of force is an inter-State norm, as is the correlative obligation not to assist in the commission of the use of force. The obligation not to assist in the commission of violations of IHL or the prohibition of complicity in acts of torture primarily bind States vis-à-vis individuals. 48 See General Comment No. 36 on Article 6 (right to life) UN Doc CCPR/C/GC/36 (HRC, 3 September 2019) para. 70: ‘States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.’ 49 See Articles 5-8 of the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute). The crime of aggression, as laid down in Article 8 bis, has been excluded from this study. PROEF PS Joelle Trampert.job_08/28/2024_10B 21 the Genocide Convention50 and the ILC’s draft Articles on Crimes Against Humanity (DACAH).51 By ‘war crimes’, I mean grave breaches of the Geneva Conventions52 or other serious violations of IHL committed against civilians or civilian objects, prisoners of war, or persons hors de combat.53 The human rights violations included in this study are deprivations of the right to life, torture and cruel, inhuman or degrading treatment or punishment (referred to as other ill-treatment), and arbitrary and unlawful deprivations of liberty. This selection is based on relevant jurisprudence and output of international courts and human rights treaty bodies, as well as the fact that a violation of these rights can amount to international crimes too. For example, torture and arbitrary detention can qualify as crimes against humanity.54 In addition, the ECtHR’s and the UN Human Rights Committee (HRC)’s output contain important developments on the right to life, including the respective treaties’ extraterritorial application. The right to life is also front and centre in the context of migration control and armed conflict. The qualifier ‘serious’ is not necessary for the right to life and prohibition of torture, but it adds a severity threshold for violations of the right to liberty and security. The exclusion of the prohibition of slavery and human trafficking and forced labour, the right to a fair trial, and the right to respect for private and family life does not mean that I classify (flagrant) breaches of these norms as any less serious. The category of ‘serious human rights violations’ is open-ended, and the study’s findings could be applied to other violations too. The examples given above, namely States’ assistance in extraordinary renditions, for migration control, and by transferring arms, all involve States assisting other States. But as international crimes and abuses which constitute human rights violations are committed by non-State actors (NSAs) such as individuals, non-State armed groups, or even corporations too, this study includes scenarios where NSAs are the principal actors. There are plenty of examples of such constellations: think of Serbia’s support of Republika Srpska in Bosnia, or Russia’s support of the Donetsk People’s Republic in Ukraine.55 50 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention). 51 Draft Articles on Prevention and Punishment of Crimes Against Humanity, with Commentaries. Report of the International Law Commission 2019, Chapter IV, 11 (DACAH). 52 Geneva Convention relative to the treatment of prisoners of war (adopted 2 November 1950, entered into force 21 October 1950) 75 UNTS 135 (Geneva Convention III) and Geneva Convention relative to the protection of civilian persons in time of war (adopted 2 November 1950, entered into force 21 October 1950) 75 UNTS 287 (Geneva Convention IV). 53 Not all rules have equal status. Denying prisoners of war access to drinking water will at some point amount to a grave breach of the Convention and thus a war crime, whereas refusing them the use of tobacco will not. See Article 26(3) Geneva Convention III and the International Committee of the Red Cross (ICRC)’s updated Commentary to Geneva Convention III (2020) paras 2128 and 2131. 54 See also Opinion adopted by the UN Working Group on Arbitrary Detention, Opinion No. 66/2022 concerning Zayn al-Abidin Muhammad Husayn (Abu Zubaydah) (United States of America, Pakistan, Thailand, Poland, Morocco, Lithuania, Afghanistan and the United Kingdom of Great Britain and Northern Ireland) UN Doc A/HRC/WGAD/2022/66, 6 April 2023 (advance edited version) para. 115. 55 Note that in Ukraine and the Netherlands v Russia [GC] App Nos 43800/14, 8019/16, and 28525/20 (decision) (ECtHR, 30 November 2022), the ECtHR concluded that the conduct of this entity is attributable to the Russian Federation, see para. 697. PROEF PS Joelle Trampert.job_08/28/2024_11A 22 Assistance in the commission of a wrongful act by an international organisation (IO) has been excluded, however, primarily to ensure that the study remained manageable.56 Thus, State support for an IO or an agency of an IO of which they are a member in a situation involving serious human rights violations, such as EU member States in their cooperation with Frontex, has been excluded from this study. This particular topic has been covered in depth in other works.57 On my use of terminology, I mainly employ the term ‘principal violation’ to designate the international crime or serious human rights violation in question, which can be committed by either a State or an NSA as the principal actor. This should not be understood to imply that States can commit international crimes in the sense that they would incur some kind of criminal responsibility under international law, or that it is settled as a matter of international law that NSAs are bound by IHRL and can commit ‘human rights violations’ or other ‘internationally wrongful acts’. However, States can commit internationally wrongful acts that constitute international crimes, just as NSAs can commit crimes or other wrongs that constitute serious human rights violations. It is also relevant for this study that both States and NSAs are prohibited from committing the principal violations included in the project’s scope. Finally, I consistently use the term ‘victim’ to designate the person who has suffered harm as a direct consequence of the principal violation, without prejudice to the question whether or not they have victim-status under any specific human rights mechanism. 1.2.3. The extraterritorial or cross-border context One particular problem is how to align the reality of serious human rights violations occurring in the course of cross-border cooperation, the general complicity rule, and the universality of human rights on the one hand with the primarily territorial application of human rights treaties on the other.58 The study is therefore interested in, but not limited to, cases where the victim is outside the assisting State’s territorial jurisdiction. Much of the jurisprudence examined for this study concerns events which occurred within the assisting State’s territory and jurisdiction and where the victim was within that State’s territory and jurisdiction too. The ECtHR’s extraordinary rendition case law is an example of this. Of course, whether or not a specific human rights treaty applies does not change anything in theory. Human rights are universal, and apply to all people, including those held in black sites, crossing international waters, or in war zones far away. While these individuals all hold human rights under customary international law, whether or not their rights can be enjoyed and/or invoked will be very 56 Draft Articles on Responsibility of International Organizations, with Commentaries. Yearbook of the International Law Commission 2011, Vol. II(2), 40 (ARIO). 57 See on this M Fink, Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’ Under the ECHR and EU Public Liability Law (OUP 2018) and M Gkliati, Systemic accountability of the European Border and Coast Guard: the legal responsibility of Frontex for human rights violations (diss. Leiden 2021) Meijers Research Institute Series 379. 58 See also M Milanovic, ‘Intelligence Sharing in Multinational Military Operations and Complicity under International Law’ (2021) 97 International Law Studies 1269, 1340. PROEF PS Joelle Trampert.job_08/28/2024_11B 23 different in practice. It is with this in mind that I address the question how IHRL can assign responsibility to States for complicity in or other contributions to serious human rights violations, especially extraterritorially. 1.3. Method, sources and structure 1.3.1. Method and interpretation The question how international law can assign responsibility to States for complicity in or other contributions to international crimes and serious human rights violations, is essentially an enquiry into what the law is. The doctrinal legal method, which can be described as ‘the systematic study of legal norms in the various sources of law that form the basis of particular legal systems’59 and includes an analysis of ‘the relationship between rules, [an explanation of] areas of difficulty and, perhaps, [a prediction of] future developments,’60 is best suited for this enquiry, also in light of the aim to provide a clear overview of the applicable law. The selection of sources that make up the legal framework coincides with one’s understanding of what the law is, and mine is one of legal positivism. I have primarily selected sources of binding law and binding interpretations thereof (i.e., court judgements), supplemented by authoritative interpretations and instruments which reflect the general state of play or direction of travel on a particular matter. The notion of complicity as well as the principal violations guided the selection of sources and the identification of relevant rules, as well as the mainstream academic literature. All the sources are in English, with the exception of some in French or Dutch. Also within the positivist approach, a neutral interpretation of what the law is, is hardly ever possible. There will rarely be one correct interpretation, and the meaning of a term or the scope of a rule will adapt and change, to suit societal demands. Moreover, interpretation itself is a value-laden exercise. My own values are apparent from the research question: by enquiring how international law can assign responsibility, the question not only assumes that this is what the law does or could do, but also that this is what it should do. In my view, States should incur responsibility for complicity in or otherwise contributing to the commission of international crimes and serious human rights violations, including when the principal violation at issue is committed outside their borders. On certain points, my interpretation of the law is closer to how the law could or should be interpreted, rather than how it currently is. Especially in Chapter 5 and the Section on the ECHR, the analysis is not limited to the 59 S Taekema, ‘Methodologies of Rule of Law Research: Why Legal Philosophy Needs Empirical and Doctrinal Scholarship’ (2021) 40 Law and Philosophy 33, 45. 60 D Pearce, E Campbell and D Harding (‘Pearce Committee’), Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (Australian Government Publishing Service, 1987) cited in T Hutchinson, Researching and Writing in Law (Reuters Thomson 2010, 3rd edition) 7 and in T Hutchinson and N Duncan, ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012) 17 Deakin Law Review 83, 101. PROEF PS Joelle Trampert.job_08/28/2024_12A 24 interpretations of the ECtHR, but also draws on ‘the [work] of the most highly qualified publicists of the various nations’61 and ‘any [other] relevant rules of international law applicable in the relations between the parties.’62 When this is the case, it will be made explicit. 1.3.2. Sources and structure Chapter 2 presents an analysis of two rules in the law of State responsibility, namely, those reflected in Article 16 ASR and Article 41(2) ASR. The rule reflected in Article 16 ASR (2.1) applies in relation to any internationally wrongful act, whereas the rule in the aggravated responsibility regime exclusively applies following a serious breach of a jus cogens norm (2.2). While the ASR are not binding as such, most rules are also part of customary international law. I have made use of the ILC’s Commentaries and preparatory work, comments by States, and the academic literature. Where available, I refer to jurisprudence, predominantly of the International Court of Justice (ICJ). Chapters 3, 4, and 5 analyse a selection of rules relevant to complicity in and other contributions to the principal violations central to this study. Chapter 3 covers the Genocide Convention (3.1), the Torture Convention (3.2),63 and the DACAH (3.3). Regarding the Genocide Convention, I analyse and discuss the ICJ’s judgement on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) and academic literature on this case. Regarding the Torture Convention, I make use of the general comments and decisions of the UN Committee against Torture (CmAT). As with the HRC, it should be noted that while the Committee’s decisions are presented like judgements, they are not legally binding and not all Committee members necessarily have a legal background. The DACAH, like the ASR, are not binding as such, but some of the draft Articles might reflect international custom. The document also follows the structure and rationale of the other two conventions, and given its novelty and the aim to provide the basis for a multilateral treaty, it is worth including them in this study. Chapter 4 covers IHL (4.1) and the Arms Trade Treaty (ATT)64 (4.2), more specifically, the prohibition of assistance implicit in the obligation to ensure respect for IHL and the transfer prohibitions 61 See Article 38 of the Statute of the International Court of Justice (adopted 24 October 1945, entered into force 14 April 1946) XV UNCIO 355 (ICJ Statute). See also M Baumgartner, ‘Lost in Citation: How to Reference the UN Charter and the ICJ Statute’ (Opinio Juris, 29 August 2023) <https://opiniojuris.org/2023/08/29/lost-in-citation-how-to-reference-the-un-charter-and-the-icj-statute/>. 62 See Article 31(3)(c) of the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT). For a general discussion, see O Dörr, ‘Article 31’ in O Dörr and K Schmalenbach (eds) Vienna Convention on the Law of Treaties: A Commentary (Springer 2018, 2nd edition) 603 and further, and C McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 International and Comparative Law Quarterly 279. For a critical discussion, see A Rachovitsa, ‘The Principle of Systemic Integration in Human Rights Law’ (2017) 66 International and Comparative Law Quarterly 557. 63 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT or Torture Convention). 64 Arms Trade Treaty (adopted 2 April 2013, entered into force 24 December 2014) 3013 UNTS 269 (ATT). PROEF PS Joelle Trampert.job_08/28/2024_12B 25 codified in the ATT.65 The Geneva Conventions and their Additional Protocols provide the foundational rules of IHL. The treaties have different subject matters, with Conventions III and IV relating to prisoners of war and civilians respectively and the two 1977 Additional Protocols relating to the protection of victims in armed conflict.66 Many of the rules are part of international custom. The recently updated Commentaries of the International Committee of the Red Cross (ICRC), as well as academic literature, have been used to interpret and discuss the conditions and scope of the prohibition of assistance implicit in the obligation to ensure respect for IHL. In force for almost a decade now, the ATT complements and concretises particular aspects of this obligation, namely, when States authorise or otherwise allow arms transfers to another State where there is an armed conflict.67 The ATT is also highly relevant in that it relates to a form of assistance that is by definition cross-border in nature. Importantly, the ATT also applies when IHL does not. Chapter 5 is the final substantive chapter and focuses on two human rights treaty systems: the ECHR (5.1) and the International Covenant on Civil and Political Rights (ICCPR or Covenant) (5.2).68 This ECHR and the ICCPR are, regionally and universally, the most important human rights systems. The ECHR is the oldest in the world and the ECtHR has the largest case load, including jurisprudence which is directly relevant for this research.69 The ICCPR is the most widely ratified universal system covering the same rights, and the HRC’s output includes relevant recent developments. The field of IHRL, which also includes non-binding standards such as those in the UN Guiding Principles on 65 The focus on legal weapons also justifies the exclusion of other arms control treaties prohibiting certain types of assistance, namely the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (adopted 3 September 1992, entered into force 29 April 1997) 1975 UNTS 45, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (adopted 18 September 1997, entered into force 1 March 1999) 2056 UNTS 211, and the Convention on Cluster Munitions (adopted 30 May 2008, entered into force 1 August 2010) 2688 UNTS 39. See on these V Lanovoy, Complicity and its Limits in the Law of International Responsibility (Hart 2016) 186-193. 66 See also Article 1(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (AP I or Protocol I) and Article 1(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (adopted 8 December 2005, entered into force 14 January 2007) 2404 UNTS 261 (AP III or Protocol III). 67 The fifth preambular principle of the ATT reads: ‘Respecting and ensuring respect for international humanitarian law in accordance with, inter alia, the Geneva Conventions of 1949, and respecting and ensuring respect for human rights in accordance with, inter alia, the Charter of the United Nations and the Universal Declaration of Human Rights.’ [Emphasis mine] See also Article 6(3) and Article 7(1)(b)(i). Ruys has also observed that Article 6(3) ATT ‘can arguably be seen as the crystallization of a customary norm, finding its basis in the duty to “ensure respect” for [IHL], and prohibiting the transfer of arms to known [IHL] offenders.’ See T Ruys, ‘Of Arms, Funding and “Non-lethal Assistance” – Issues Surrounding Third-State Intervention in the Syrian Civil War’ (2014) 13 Chinese Journal of International Law 13, 29. 68 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR or Covenant). 69 Predominantly the jurisprudence concerning the responsibility of Council of Europe (CoE) member States for their role in the so-called extraordinary rendition programme of the US in the ‘war on terror’. PROEF PS Joelle Trampert.job_08/28/2024_13A 26 Business and Human Rights (UNGPs),70 is too extensive to examine comprehensively in this study. Apart from the Torture Convention, other UN human rights treaties are not covered. Neither are the Inter-American and the African human rights system,71 or the EU Charter of Fundamental Rights.72 This selection could be criticised as being unduly narrow or overly Eurocentric.73 Indeed, the ECtHR is not representative of IHRL. Yet this study would be incomplete without considering the jurisprudence of the most active human rights court currently in existence. Moreover, as many States party to the ECHR feature prominently in the examples of States contributing to serious human rights violations around the world, I believe that it is fruitful to look at how the European human rights system could be used to hold them to account.74 In other words, an attempt to forge a way forward from within is deserving of our attention too. As for why I have included IHRL at all, an assumption at the core of this research project is that it is problematic that States which have consented to be bound by a treaty which prohibits them from committing X would not be required – under that same treaty – to refrain from assisting the commission of X, or would not incur responsibility if they assist in the commission of X outside their borders. This is of course exactly the type of conduct that the general complicity rule governs, but other options and interpretations, especially under IHRL, are worth considering. I have used the following sources: judgements and decisions of the ECtHR and relevant documents of the Council of Europe, the decisions, general comments, and concluding observations of the HRC, and academic literature. 70 Human Rights Council, ‘Human Rights and Transnational Corporations and Other Business Enterprises,’ UN Doc A/HRC/Res/17/4, 16 June 2011 endorsing the Guiding Principles on Business and Human Rights: Implementing the UN “Protect, Respect and Remedy” Framework UN Doc A/HRC/17/31, 21 March 2011 (UNGPs). 71 American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (ACHR) and African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 363 (ACHPR). 72 Charter of Fundamental Rights of the European Union (adopted 7 December 2000, entered into force 1 December 2009) OJ 2012/C 326/02 391 (CFR or Charter). 73 The Inter-American system has jurisprudence on ‘territorial complicity’ and other forms of State assistance (regarding the conduct of NSAs), which has been covered by Jackson (2015) 190-200. See also V Lanovoy ‘The Use of Force by Non-State Actors and the Limits of Attribution of Conduct (2017) 28(2) European Journal of International Law 563, 582-583, A Varga, Establishing State Responsibility in the Absence of Effective Government (diss. Leiden 2020) Meijers Research Institute Series 347, 314-317, and A Berkes, International Human Rights Law Beyond State Territorial Control (CUP 2021) 254-257. The African system has relatively little jurisprudence on complicity and other contributions. I have identified two cases: the case of Al-Asad v the Republic of Djibouti, Communication 383/10 (ACmHPR, 14 October 2014), which concerned an alleged extraordinary rendition, and the case of Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, Communication 155/96 (ACmHPR, 27 October 2001), which concerned Nigeria’s responsibility in connection with the wrongdoing of the State oil company and private company Shell in the Niger Delta area including the Ogoniland. See in particular paras 50 and 58. The former was declared inadmissible as the complainant had not been able to prove that he was in the territory and jurisdiction of the respondent State at the material time, and the latter was decided on the basis of the State’s responsibility under the heading of positive obligations. Neither cases contain any developments on the notion of complicity as such. 74 As the ECHR does also not limit the right of individual complaint to individuals with a certain nationality or country of residence, individuals in third countries suffering human rights violations that States party to the ECHR have facilitated can also submit a complaint to the Court, provided they would be within the respondent State’s jurisdiction in the sense of Article 1 ECHR. PROEF PS Joelle Trampert.job_08/28/2024_13B 27 Chapter 6 concludes. First, it provides an overview of the rules studied and a categorisation showing how they interrelate. It aims to present a more comprehensive picture of the applicable law to scenarios of complicity or other forms of assistance in order to prevent undue accountability gaps and, second, to ensure that an eventual basis for responsibility properly reflects the assisting State’s conduct. Third, it concludes that IHRL can to a certain extent address States’ responsibility for complicity in or other contributions to serious human rights violations committed by other actors abroad too. 1.4. Contribution and inspiration Besides providing an up-to-date and detailed overview of the applicable law and recent developments in the jurisprudence and output of international courts and UN human rights treaty bodies, this study brings together rules in the law of State responsibility and rules in multilateral, inter-State treaty regimes which ultimately all aim to prevent States contributing to the commission of international crimes and serious human rights violations. There has been an increase in attention to State responsibility for complicity in legal scholarship, and there are many publications on complicity in general as well as in specific situations, including counterterrorism and rendition,75 migration control,76 and the arms trade.77 Three monographs were published in 2011, 2015, and 2016 respectively on State responsibility for complicity in public international law: Aust’s Complicity and the Law of State Responsibility,78 Jackson’s Complicity in International Law,79 and Lanovoy’s Complicity and its Limits in the Law of International Responsibility.80 This study builds on and adds to these works by including developments such as the DACAH, the ICRC’s updated Commentaries to Geneva Conventions I-III, the ATT, the ECtHR’s case law on responsibility for complicity and the ECHR’s extraterritorial application, and the HRC’s General Comment on the right to life. These three monographs do address responsibility for complicity in international crimes and serious human rights violations, but none focus on these particular types of violations specifically. All three also touch on the issue of extraterritorial complicity under IHRL, but this study includes the recent jurisprudence of the ECtHR and output of the HRC. 75 See e.g. H Duffy, ‘Detention and Interrogation Abroad: The ‘Extraordinary Rendition’ Programme’ in A Nollkaemper and I Plakokefalos (eds) The Practice of Shared Responsibility in International Law (CUP 2017), NHB Jørgensen, ‘Complicity in Torture in a Time of Terror: Interpreting the European Court of Human Rights Extraordinary Rendition Cases’ (2017) 16 Chinese Journal of International Law 11, and S Egan, Extraordinary Rendition and Human Rights – Examining State Accountability and Complicity (Palgrave Pivot 2019). 76 See e.g. Pijnenburg (2018) and T Gammeltoft-Hansen and J Hathaway, ‘Non-Refoulement in a World of Cooperative Deterrence’ (2015) 53(2) Columbia Journal of Transnational Law 235, 276 and further. 77 See e.g. A Bellal, ‘Arms Transfers and International Human Rights law’ in S Casey-Maslen (ed.) Weapons Under International Human Rights Law (CUP 2014), NHB Jørgensen, ‘State Responsibility for Aiding or Assisting International Crimes in the Context of the Arms Trade Treaty’ (2014) 108(4) American Journal of International Law 722, L Ferro, ‘Brothers in Arms: Ancillary State Responsibility and Individual Criminal Liability for Arms Transfers to International Criminals’ (2015) 54 The Military Law and the Law of War Review 139, and Ferro (2019). 78 Aust (2011). 79 Jackson (2015). 80 Lanovoy (2016). PROEF PS Joelle Trampert.job_08/28/2024_14A 28 The many academic articles which have influenced my thinking cannot and need not all be mentioned here. However, there are a couple of pieces which particularly inspired my focus. First, in an article entitled Freeing Soering, Jackson has argued how the principle of non-refoulement implicit in Article 3 ECHR can be ‘reimagined’ as a narrow, preventive complicity rule which can be extended to other types of complicity too, including when the victim is in another State.81 This piece contributed to my decision to concentrate on extraterritorial complicity scenarios. Second, in an extensive article on intelligence sharing in multinational military operations and complicity under international law, Milanovic has compared the general complicity rule in the ASR with ‘system-specific complicity rules’ in both IHL and IHRL, with a focus on the assisting States’ knowledge.82 In general Milanovic’s scholarship has been very beneficial for my own research. Third, on the extraterritorial application of the ECHR in a specific case of migration control, Moreno-Lax has laid out an alternative approach to ECHR-jurisdiction.83 Apart from the fact that the case at hand can also be framed as complicity, her arguments show how critical and robust legal scholarship can be valuable for victims seeking a forum for redress. Fourth and finally, after reading both Trapp’s and Seibert-Fohr’s respective articles on different degrees of involvement, corresponding forms of responsibility, and their critique of the ICJ’s approach to Serbia’s responsibility regarding the Srebrenica genocide in the Bosnian Genocide case, I realised that it was necessary to include the category of ‘other contributions’ in the study too.84 * The research was completed in August 2023. Developments from September 2023 are not included, with the exception of a limited number of events that occurred while the manuscript was being revised.85 The manuscript was finalised on 26 February 2024. 81 M Jackson, Freeing Soering: The ECHR, State Complicity in Torture and Jurisdiction’ (2016) 27(3) European Journal of International Law 817. 82 Milanovic (2021). 83 Moreno-Lax (2020). 84 K Trapp, ‘Of Dissonance and Silence; State Responsibility in the Bosnia Genocide Case’ (2015) 62 Netherlands International Law Review 243 and A Seibert-Fohr, ‘From Complicity to Due Diligence: When Do States Incur Responsibility for Their Involvement in Serious International Wrongdoing’ (2017) 60 German Yearbook of International Law 667. 85 In particular ECtHR Al-Hawsawi; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), Provisional Measures, ICJ General List No. 192 (ICJ, 26 January 2024); and Court of Appeal Stichting Oxfam Novib. PROEF PS Joelle Trampert.job_08/28/2024_14B 29 CHAPTER 2. THE LAW OF STATE RESPONSIBILITY Introduction The law of State responsibility is the main legal framework and therefore an obvious starting point for the question how international law can assign responsibility to States for complicity in or other contributions to international crimes or serious human rights violations committed by other actors, including extraterritorially. The law of State responsibility is codified in the ASR; the result of a decades-long project which the ILC completed in 2001. Despite some valid critiques and the fact that they have not been incorporated in a multilateral treaty, the ASR have proven to be highly influential and most Articles are seen to reflect international custom.86 The rules relevant for this study are laid down in Articles 16 (2.1) and 41(2) ASR (2.2). Article 16 ASR reflects a general complicity rule of customary international law. The customary status of the non-assistance rule in Article 41(2) ASR remains debatable, but it is at least more settled now than it was over two decades ago.87 This Chapter discusses the nature, scope, and conditions of these rules, and summarises the main findings in an interim conclusion (2.3). 2.1. The general complicity rule reflected in Article 16 ASR Following a brief overview of the origin and status of the rule reflected in Article 16 ASR (2.1.1), this Section discusses the nature and scope of the complicity rule (2.1.2) and the rule’s conditions (2.1.3). 2.1.1. The origins and status of the general complicity rule After the League of Nations’ attempt to codify the law of State responsibility at the Hague Conference in 1930,88 the ILC selected State responsibility as one of the main topics suitable for codification at its first session in 1949.89 The project started in the mid-fifties, but it was not until the late seventies that a 86 According to Olleson, it is unlikely that there will be such a treaty at any point in the near future, which is exactly why the ASR remain an important reference point. See S Olleson, ‘The Virtue of Pragmatism: Reflections on the Future of the Articles on State Responsibility’ (2022) Questions of International Law, Zoom-in 93, 23, 24-25. 87 See also Milanovic (2021) 1307. 88 Some have described this attempt as a failure, see e.g. C Bories, ‘The Hague Conference of 1930’ in J Crawford, A Pellet, S Olleson, K Parlett (eds) The Law of International Responsibility (OUP 2010) 61 and further. See also ILC members François and Scelle, ILC Yearbook 1949, Vol. I, 46, 49-50. Others have credited the League of Nations for its substantial contribution to the ILC’s State responsibility project, see e.g. A Berkes, ‘The League of Nations and the International Law of State Responsibility’ (2020) 22 International Community Law Review 331. 89 See again ILC Yearbook 1949, Vol. I, 46, 49-50. PROEF PS Joelle Trampert.job_08/28/2024_15A 30 complicity rule was first formulated by Ago, the second Special Rapporteur for the topic.90 Under the heading ‘Implication of a State in the internationally wrongful act of another State’, Ago described two types of cases: those where a State participated in the wrongful act of another State, and those where a State either directed and controlled or coerced another State to commit a wrongful act.91 For Ago, the main characteristic of the first category was the connection between the conduct of a State, which might not in itself be unlawful, and the wrongful conduct of another State.92 The participating State’s conduct could ‘become tainted’ due to its contribution to the commission of the other State’s wrongful act, which meant, in turn, that the participating State could ‘bear some share of the international responsibility of the other State or (…) incur international responsibility itself’.93 Ago’s first articulation of the complicity rule, at the time still an exercise of progressive development,94 read as follows: Article 25. Complicity of a State in the internationally wrongful act of another State The fact that a State renders assistance to another State by its conduct in order to enable or help that State to commit an international offence against a third State constitutes an internationally wrongful act of the State, which thus becomes an accessory to the commission of the offence and incurs international responsibility thereby, even if the conduct in question would not otherwise be internationally wrongful.95 Four features are worth noting here which have not changed since. First, the rule covered situations of inter-State complicity, although Ago added that it may be ‘presumed that the same principles would apply if one of the protagonists were a subject of international law other than a State.’96 Second, while at the time not explicit in the text, Ago concluded that the ‘aid or assistance to another State committing or preparing to commit an international offence must be adopted knowingly and with intent to facilitate the commission of the offence’.97 Third, the conduct of the assisting State might not be unlawful in and of itself, but is internationally wrongful because it facilitates the principal violation.98 Last, the assisting 90 ILC Yearbook 1978, Vol. II(1), 31, Seventh report of Special Rapporteur Ago 52-60. Ago had previously stated in his course at The Hague Academy in 1939: ‘Ce qui paraît par contre inconcevable en droit international, c’est toute forme de complicité, de participation, ou de provocation au délit. Le droit des gens, dans sa structure actuelle, ne saurait prévoir ces formes de considération commune de plusieurs sujets par rapport à un seul délit, qui apparaissent comme l’œuvre caractéristique de l’élaboration et de la nature du droit pénal étatique.’ See R Ago, ‘Le Délit International’ (1939) 68 Collected Courses of the Hague Academy of International Law 419, 523. See also, among others, Aust (2011) 12-15. 91 ILC Yearbook 1978, Vol. II(1), 52-60, paras 52-53. 92 Id, para. 52. 93 Id. 94 Id, para. 74. See also Aust (2011) 98, J Crawford, State Responsibility – The General Part (CUP 2013) 408, and Lanovoy (2016) 43-44. 95 Id, para. 77. 96 Id, para. 76. See also ILC Yearbook 1972, Vol. II, 71, Fourth report of Special Rapporteur Ago 95 paras 61-146 on the conduct of private individuals in general and paras 64 and 70 in particular, and ILC Yearbook 1958, Vol. II, 47, Third report of Special Rapporteur García Amador 54 para. 22. See also R Mackenzie-Gray Scott, ‘State Responsibility for Complicity in the Internationally Wrongful Acts of Non-State Armed Groups’ (2019) Journal of Conflict & Security Law 1, 3 and Varga (2020) 295-296. 97 Id, para. 76, under (a). 98 Id, para. 76, under (b). PROEF PS Joelle Trampert.job_08/28/2024_15B 31 State would bear responsibility for its own conduct as ‘an accessory to the international offence’ of the principal State, and that responsibility would be distinct from the responsibility of the principal State.99 In a revised version of the rule,100 the words ‘complicity’, ‘accessory’ and ‘international offence’ were removed due to their criminal law connotations,101 as was the element ‘against a third State’.102 This last change was more fundamental, as it reflected the recognition that wrongful acts could be committed against other actors.103 The ILC provisionally adopted the revised draft article on State responsibility for ‘aid or assistance’ on first reading in 1996.104 Having considered the comments of various governments and developments in State practice, Crawford, the Special Rapporteur for the second reading, presented a revised version of the complicity rule in 1999.105 While Ago’s draft article contained no explicit knowledge requirement, Crawford’s revised provision included the condition of ‘knowledge of the circumstances of the internationally wrongful act’ in the text.106 Crawford also concluded that the phrase ‘rendered for the commission of an internationally wrongful act’ in the first and second version of the rule implied ‘a specific intent to assist in the commission of the wrongful act by the assisted State’.107 Crawford’s most significant addition was the so-called opposability requirement: a State would only be internationally responsible for assisting the wrongful act of another State if the act would also be wrongful if committed by the assisting State.108 In other words, the assisting State must have been bound by the same obligation as the principal State. The ILC noted that without this addition, the complicity rule would have become a primary rule and would therefore violate the principle that a treaty does not create rights or duties for 99 Id, para. 76, under (c). 100 See ILC Yearbook 1978, Vol. I, 269, para. 2: Article 27. Aid or assistance by a State to another State for the commission of an internationally wrongful act Aid or assistance by a State to another State, if it is established that it is rendered for the commission of an internationally wrongful act, carried out by the latter, itself constitutes an internationally wrongful act, even if, taken alone, such aid or assistance would not constitute a breach of an international obligation. 101 Several ILC members voiced concerns over possible (domestic) criminal law connotations. See ILC Yearbook 1978, Vol. I, 229, para. 4; 232-237, paras 3, 5, 6, 11, 12, 31, 35; 239-240, paras 19 and 20; and Ago’s response at 241, paras 31 and 33. 102 See also Aust (2011) 101. 103 See ILC Yearbook 1978, Vol. I, 241, para. 32. 104 See ILC Yearbook 1996, Vol. II(2), 58-65. See also ILC Yearbook 1978, Vol. II(2), 98-105. 105 See ILC Yearbook 1999, Vol. II(1), 3, Second report of Special Rapporteur Crawford 56, para. 214: Article 27. Assistance or direction to another State to commit an internationally wrongful act A State which aids or assists, or directs and controls, another State in the commission of an internationally wrongful act is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State. 106 ILC Yearbook 1999, Vol. II(1), 51, para. 188. See also at 49, para. 180. 107 Id, 49, para. 175. See also at 56, para. 214, note 1. 108 Id, 50-51, paras 183-188. See also at 97-100. PROEF PS Joelle Trampert.job_08/28/2024_16A 32 third States without their consent.109 The final version of the general complicity rule was provisionally adopted by the Drafting Committee in 2000,110 and by the ILC in 2001.111 It reads as follows: Article 16. Aid or assistance in the commission of an internationally wrongful act A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State. In 2001, the ILC submitted the ASR to the UN General Assembly along with the Commentaries and recommended the General Assembly to ‘take note’ of the draft Articles and to ‘consider, at a later stage, and in the light of the importance of the topic, the possibility of convening an international conference (…) with a view to concluding a convention on the topic.’112 The General Assembly took note of the ASR and commended them to the attention of governments,113 which it continues to do.114 Even though not all Articles reflected rules of international custom at the time they were drafted or even when they were adopted, the vast majority has attained this status since. This is also true for Article 16 ASR.115 Various international courts,116 domestic courts,117 and most legal scholars118 have referenced the rule and declared that it is part of customary international law.119 It is to this customary rule that the analysis 109 See ILC Commentary to Chapter IV, para. 8, and ILC Commentary to Article 16 ASR, para. 6, with reference to Article 34 VCLT. See also Aust (2011) 102. 110 ILC Yearbook 2000, Vol. II(2), 65. 111 ILC Yearbook 2001, Vol. II(2), 26. See for discussions in the Sixth Committee of the UN General Assembly and the written comments and observations received from Governments prior to the adopted of the ASR, ILC Yearbook 2001, Vol. II(1), 33, at 51-52. See for Crawford’s final report ILC Yearbook 2001, Vol. II(1), 1, 20 (with respect to Chapter IV and Article 16 ASR). 112 ILC Yearbook 2001, Vol. II(2) 25, paras 72-73. 113 See UN General Assembly Resolution A/RES/56/83, 12 December 2001. The term ‘draft’ was omitted in para. 3 of the Resolution, the operative paragraph taking note of the articles and commending them to the attention of Governments. 114 See UN General Assembly Resolution A/RES/77/97, 7 December 2022, Responsibility of States for Internationally Wrongful Acts. 115 See especially M Pacholska, Complicity and the Law of International Organizations – Responsibility for Human Rights and Humanitarian Law Violations in UN Peace Operations (Edward Elgar 2020) 93, fn 98, who has noted that ‘an overwhelming majority of governments expressed their support for the inclusion of Article 16.’ See also Aust (2011) 169-174. 116 For an overview, see United Nations Legislative Series Book 25: Materials on the responsibility of States for Internationally Wrongful Acts (2023, 2nd edition) 228-231, including most notably the ICJ’s Bosnian Genocide case, para. 420, accessed via <https://legal.un.org/legislativeseries/book25.shtml>. 117 For examples up to 2018, see R Janik, ‘International Responsibility’ in A Nollkaemper, A Reinisch, R Janik, F Simlinger (eds) International Law in Domestic Courts: A Casebook (OUP 2018) 395-401. 118 See among many others Aust (2011) 97, also citing the ILC’s Commentary to Article 16 ASR, para. 7, Jackson (2015) 150-153, Milanovic (2021) 1272, and Olleson (2022) 37, both referencing the ICJ’s Bosnian Genocide case. Cf Mackenzie-Gray Scott (2019) 9, writing that it is ‘uncertain that Article 16 itself is a rule of customary international law, which is owed to it being relatively new, meaning state and judicial practice has not yet had time to properly digest it.’ In my view, Article 16 ASR undoubtedly reflects a rule of international custom. 119 But see Olleson (2022) at 32-38, who cautions against relying too heavily on judicial references. PROEF PS Joelle Trampert.job_08/28/2024_16B 33 here relates, and any deviations from the text of Article 16 ASR, in particular the rule’s scope of application regarding the wrongs of NSAs, will be made explicit. 2.1.2. The nature and scope of the general complicity rule The first two paragraphs explain the derivative nature of complicity and address the question whether the rule reflected in Article 16 ASR is a primary or a secondary rule. The third and fourth paragraph compare complicity to two other forms of responsibility, namely responsibility for creating or contributing to a risk and to direct responsibility following attribution of conduct. A final paragraph argues that the general complicity rule applies when States assist in the wrongs of NSAs. 2.1.2.1. Responsibility for complicity is derivative One of the main features of the general complicity rule is that conduct which is usually lawful, can become unlawful if and when it assists in the commission of an internationally wrongful act (i.e., the principal violation). For example, cooperation in the context and for the purpose of counter-terrorism and migration control can be lawful, as can arms transfers or the provision of other types of goods and support. But when States cooperate or offer support while knowing that they are assisting in the commission of an internationally wrongful act, their own conduct – the act of assistance – thereby becomes unlawful. That unlawfulness is dependent on yet distinct from the wrongfulness of the principal violation. The ILC has characterised complicity as an exception to the principle of independent responsibility,120 i.e., that States are responsible for their own internationally wrongful acts.121 This is due to the fact that the wrongfulness of the assisting State’s conduct depends on the principal violation actually materialising; if the principal violation does not occur, then the assisting State’s conduct will not be wrongful, simply because there will be nothing for it to be complicit in.122 Responsibility for (the act of) complicity is derivative or derived from the responsibility of the principal actor, i.e., the State committing the principal wrongful act.123 As responsibility for complicity is derivative in nature, this also means that attempted complicity as well as complicity in an incomplete wrongful act are excluded from the scope of the general complicity rule.124 To illustrate this: if State A tries but fails to deliver trucks to State B in order 120 ILC Commentary to Part One, Chapter IV, para. 8. 121 Id, para. 1. See also para. 2, adding that ‘internationally wrongful conduct often results from the collaboration of several States rather than of one State acting alone.’ 122 Jackson (2015) 5, with regard to the issue of State participation in the conduct of NSAs. 123 See ILC Commentary to Part One, Chapter IV, paras 4 and 7-9 on responsibility under Chapter IV being ‘derivative’ or ‘derived’. 124 See ILC Yearbook 1999, Vol. II(1), 55 paras 212-213. PROEF PS Joelle Trampert.job_08/28/2024_17A 34 to facilitate State B’s policy to forcibly transfer the civilian population, or alternatively, State A successfully delivers the trucks but the forcible transfer is never carried out by State B, State A cannot be responsible for complicity as there is no principal violation for it to be complicit in. As responsibility for complicity derives from the principal violation actually occurring, responsibility can only ever be assigned ex post facto.125 This makes the nature of responsibility for complicity fundamentally different to responsibility for creating or contributing to a risk, which can be assigned ex ante, i.e., before that risk materialises and becomes reality. This is discussed further in 2.1.2.3 below. As stated above, the wrongfulness of the act of assistance is and remains distinct from the principal wrongful act. This has bearing on what the complicit State ultimately incurs responsibility for, which is discussed further in 2.1.2.4 below. As the general complicity rule renders normally lawful conduct wrongful, this raises the question how it fits within the primary/secondary rule dichotomy. 2.1.2.2. Complicity in the primary/secondary rule dichotomy The act of assistance is a distinct wrongful act for which the assisting State incurs derivative international responsibility. Does this mean that the general complicity rule is in fact a primary rule? Primary rules are the obligations that States have under international law, which can be negative or positive, of result or of means, substantive or procedural, and imposed by custom and/or a treaty. Secondary rules set out the conditions for States to be considered responsible under international law as well as the legal consequences that flow from that responsibility.126 It was Special Rapporteur Ago’s idea to focus on secondary rules to the exclusion of primary rules, and this emphasis in the ASR has been upheld ever since.127 During the drafting process, some ILC members queried whether the complicity rule was really a secondary rule and whether it deserved a place in the ILC’s codification See also J Quigley, ‘Complicity in International Law: A New Direction in the Law of State Responsibility’ (1986) 57 British Yearbook of International Law 77, 86, B Graefrath, ‘Complicity in the Law of International Responsibility’ (1996) 29 Revue Belge de Droit International 370, 375, and Aust (2011) 396. 125 In cases where the international responsibility of a State is invoked on the basis of the rule as laid down in Article 16 ASR, the so-called Monetary Gold principle could present a procedural problem. This principle dictates that if ‘the vital issue to be settled concerns the international responsibility of a third State, the Court cannot, without the consent of that third State, give a decision on that issue binding upon any State, either the third State, or any of the parties before it.’ In determining whether or not the responsibility of a third State is at issue, it must be determined whether the legal interests of that third State would ‘form the very subject-matter of the decision’. See Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America), Judgement, ICJ Reports 1954, 19 (ICJ, 15 June 1954) 32-33. In complicity constellations, the ICJ or another international court might be required to rule on the wrongfulness of the conduct and on the responsibility of the assisted or principal State. Where this is so, the court in question will not have jurisdiction. See ILC Commentary to Article 16 ASR, para. 11. See also Aust (2011) 296 and further and Jackson (2015) 171-172. 126 See ILC General Commentary to the ASR, para. 1. 127 See ILC Yearbook 1970, Vol. II, 177, Second report of Special Rapporteur Ago 179, para. 11, and ILC Yearbook 1980, Vol II(2), 27, para. 23. Cf ILC Yearbook 1961, Vol. II, 1, Sixth report of Special Rapporteur García Amador 46. Crawford, in his book, later described García Amador’s proposals as ‘tend[ing] towards the hubristic’ as they covered a whole range of State obligations. See Crawford (2013) 38, fn 194. PROEF PS Joelle Trampert.job_08/28/2024_17B 35 project on the law of State responsibility.128 Many legal scholars also consider the rule as laid down in Article 16 ASR to be a primary rule.129 Article 16 ASR has features of a primary rule in that it implies a general negative obligation which requires States not to assist in the commission of internationally wrongful acts by another.130 This is also clear from the ILC’s Commentary to Article 16 ASR, which states that ‘[t]he obligation not to provide aid or assistance to facilitate the commission of an internationally wrongful act by another State is not limited to the prohibition on the use of force.’131 The ILC drafted Article 16 ASR with reference to State practice concerning three types of primary rules: the obligation not to assist the unlawful use of force, obligations of non-assistance imposed by UN Security Council sanctions, and the obligation not to provide ‘material aid to a State that uses the aid to commit human rights violations’, for example by supplying ‘arms and other military assistance to countries found to be committing serious human rights violations.’132 The inclusion of a knowledge requirement in Article 16(a) ASR also indicates that it could be a primary rule: the ASR generally operate under the presumption of ‘objective responsibility’, which means that no fault or ‘mens rea’133 needs to be proven, unless the primary rule in question so dictates.134 This element is discussed in 2.1.3.3 below. But Article 16 ASR – and the rule of customary international law that it reflects – can just as well be framed as a secondary rule. Along with Articles 17 and 18 ASR, Article 16 ASR sets out the conditions under international law for States to be considered responsible for wrongful conduct, albeit in connection with the act of another State. If responsibility is seen as something that exists on a spectrum, complicity is best understood as a basis for responsibility which gives expression to a degree 128 See e.g. ILC Yearbook 1978, Vol. I, 236, para. 32, and for Ago’s response, 240, paras 21 and 27. See for the discussion under Crawford’s Special Rapporteurship ILC Yearbook 1999, Vol. II(1), 51 paras 187-188, ILC Yearbook 1999, Vol. I, 54, para. 54, and 77, para. 30. 129 Graefrath (1996) 372; E David, ‘Primary and Secondary Rules’ in J Crawford, A Pellet, S Olleson, K Parlett (eds) The Law of International Responsibility (OUP 2010) 32; Aust (2011) 188-190 and 416-417; Crawford (2013) 399; Jackson (2015) 149-50, and again in ‘State Instigation in International Law: A General Principle Transposed’ (2019) 30(2) European Journal of International Law 391, 394; and Lanovoy (2016) 217 and 323. See also A Nollkaemper, J d’Aspremont, C Ahlborn, B Boutin, N Nedeski, I Plakokefalos, with the collaboration of D Jacobs, ‘Guiding Principles on Shared Responsibility in International Law’ (2020) 31(1) European Journal of International Law 15, 37, stating that Principle 6, the Guiding Principles’ equivalent of Article 16 ASR, ‘may be understood as presupposing a corresponding primary obligation under international law: the obligation not to aid or assist in the commission of a wrongful act.’ [Emphasis mine] 130 ILC Commentary to Part One, Chapter IV, para. 7. 131 ILC Commentary to Article 16, para. 9. [Emphasis mine] See also the text of draft Article 27 ASR as adopted in first reading: ‘Aid or assistance by a State to another State, if it is established that it is rendered for the commission of an internationally wrongful act carried out by the latter, itself constitutes an internationally wrongful act, even if, taken alone, such aid or assistance would not constitute the breach of an international obligation.’ [Emphasis mine] 132 ILC Commentary to Article 16, para. 9. 133 While mens rea is not a term of art in the law of international responsibility, it is widely used in (international) criminal law and corresponds to what has been called ‘fault’ in public international law. See also B Bonafè, The Relationship between State and Individual Responsibility for International Crimes (Martinus Nijhoff 2009) 121, explaining that ‘state fault corresponds to the mens rea of the state organ’ or individual State agent. 134 See ILC Commentary to Article 2, paras 3 and 10, and ILC Commentary to Part One, Chapter IV, para. 8. PROEF PS Joelle Trampert.job_08/28/2024_18A 36 of involvement in wrongdoing that sits in between direct responsibility for committing that wrongdoing on the one hand, and responsibility for failing to prevent it on the other.135 Thus, if a State is responsible for complicity in serious human rights violations, it is not considered to have committed the violations itself, but it will have done something more than merely failing to prevent the principal actor from committing them. The inclusion of the opposability or double obligation requirement in Article 16(b) ASR – which requires that both the assisting State and the principal State are bound by the same underlying obligation, e.g., the obligation not to commit torture – also prevents complicity from entering the realm of primary rules. This condition is discussed in 2.1.3.4 below. Instead of qualifying complicity as either a primary rule proper or a purely secondary rule, Aust has characterised the rule reflected in Article 16 ASR as a general complicity rule. This is indeed a good way to understand it, as it does not just specify the conditions under international law for responsibility to arise, but imposes a general obligation of restraint on all States.136 Importantly, however, this general obligation of restraint did not appear out of nowhere, but can be considered inherent in the underlying principal obligation breached. This is also clear from the ILC’s Commentary: the prohibition of the use of force includes or presupposes a prohibition of assistance, and a State which allows its territory to be used by another State to carry out an armed attack against a third State also breaches the prohibition of the use of force.137 This does not mean that the use of force by the principal State is attributed to the assisting State; rather, inherent in the underlying norm is the obligation not to be complicit in the breach of that norm by another actor. 2.1.2.3. Complicity versus risk-based responsibility The derivative nature of complicity can be explained further by contrasting responsibility for complicity with responsibility for a breach of the prohibition of refoulement.138 The prohibition of refoulement, a substantive primary rule proper that has been codified in relation to torture in Article 3 CAT and is implicit in the prohibition of torture as laid down in Article 3 ECHR and Article 7 ICCPR, requires States to refrain from transferring a person to another State where there are substantial grounds for believing that they would face the real risk of being subjected to torture or ill-treatment there.139 A breach of that duty, and thus the wrongfulness of the conduct, is both independent and distinct from the conduct of (or in) the receiving State, in the sense that the principal violation – i.e., the torture or ill- 135 This is also how the ICJ approached Serbia’s responsibility in the Bosnian Genocide case. See in particular Jackson (2015) 197 and Trapp (2015) 245. See also, albeit in relation to the ECHR-specific complicity rule, M Milanovic, ‘State Acquiescence or Connivance in the Wrongful Conduct of Third Parties in the Jurisprudence of the European Court of Human Rights’ in G Kajtár, B Çalı, M Milanovic (eds) Secondary Rules of Primary Importance in International Law (OUP 2022) 222. 136 The ILC uses the terminology of a ‘general rule’ too, see ILC Commentary to Article 16 ASR, para. 2. 137 ILC Commentary to Article 16 ASR, para. 8. 138 See also Jackson (2015) 7-8. 139 See Soering v the United Kingdom, App No. 14038/88 (ECtHR, 7 July 1989) para. 88. PROEF PS Joelle Trampert.job_08/28/2024_18B 37 treatment – need not occur for the prohibition of refoulement to be breached.140 Exposing someone to the risk of torture or ill-treatment constitutes a distinct wrongful act which entails the independent and original responsibility of the transferring State. Responsibility for refoulement is therefore not derivative in nature, as responsibility for complicity is. A breach of the prohibition of refoulement gives rise to ex ante, risk-based responsibility, whereas responsibility for complicity can only ever be assigned ex post.141 As the ECtHR’s extraordinary rendition cases show, refoulement and complicity are not mutually exclusive; the same conduct, i.e., the transfer of a person, can entail responsibility for the exposure to the risk as a consequence of the transfer as well as for complicity.142 In this respect, the rules can operate side by side, or rather, one after another. In the case of El-Masri v Macedonia, Macedonia’s responsibility for a breach of the prohibition of refoulement could have been established as soon as it transferred Mr El-Masri to the CIA; for Macedonia’s responsibility it would not have mattered whether or not the CIA ultimately subjected El-Masri to acts of torture.143 This is so because Macedonia owes the obligation or the right not to be exposed to the risk of torture or ill-treatment to every individual within its jurisdiction (as do all other States under customary international law). As explained above, the main difference is that responsibility for refoulement can arise irrespective of and therefore prior to the conduct of the principal State, whereas complicity depends on that conduct materialising. Thus, when a State breaches the prohibition of refoulement, it incurs responsibility for contributing to the risk of torture, not for complicity in the act of torture per se. While assigning responsibility for complicity is always a backward-looking exercise, a State’s knowledge that it might contribute to the commission of serious human rights violations carried out by or in another State, could incentivise that State to assess the risk of the principal violation before providing any (further) assistance. In this sense, the general complicity rule is similar to the principle of non-refoulement.144 The principle of non-refoulement is discussed further in Chapter 3. 2.1.2.4. Complicity versus attribution of conduct The general complicity rule is derivative, but not attributive in nature. This means that the assisting State is not responsible for the principal violation, but for complicity in it.145 This is an important 140 See ILC Yearbook 1999, Vol. II(1), 46 para. 161 (d) and ILC Commentary to Part One, Chapter IV, para. 4. It should be noted that the wrongfulness of the transferring State’s conduct does not, strictly speaking, ‘depend on the independent action of another State’ in the same way as the general complicity rule does. 141 See Aust (2011) 397 and Seibert-Fohr (2017) 685-687 and 706. 142 ECtHR El-Masri paras 215-222, especially 220. See also Aust (2011) 396-397 and Jackson (2015) 8, fn 22. The facts of El-Masri are explained in Chapter 5, under 5.2.2.3. 143 See Iskandarov v Russia, App No. 17185/05 (ECtHR, 23 September 2010) para. 132. 144 See again Aust (2011) 397-398 and Jackson (2016). 145 ILC Commentary to Article 16 ASR, para. 10. See also ILC Yearbook 1978, Vol. II(1), 60, para. 76, under (b) and (c), and Jackson (2015) 3 and 167-168. PROEF PS Joelle Trampert.job_08/28/2024_19A 38 difference, as an attributive or imputational146 complicity rule would mean that the assisting State would be directly responsible for the principal violation as such.147 The ILC’s Commentary to Chapter IV of Part One of the ASR, which includes Article 16 ASR, speaks of ‘exceptional cases where one State is responsible for the internationally wrongful acts of another’.148 This might give the impression that Article 16 ASR – as one of the exceptions to the principle of independent responsibility – would be some kind of ground for attribution of conduct with respect to the act of another, but this is not the case. The ILC’s Commentary to Article 16 ASR clarifies that the assisting State is responsible for and to the extent of its own act of assistance, and that it is for this separate wrongful act alone that it bears responsibility; not for the act of the assisted State.149 The Commentary also adds that ‘[i]n some cases this may be a distinction without a difference’, especially where the assistance was a ‘necessary element in the [principal] wrongful act in absence of which it could not have occurred.’150 The ILC’s wording in the Commentary to Chapter IV of Part One of the ASR makes sense with respect to the other rules included in that chapter: direction and control of another State in the commission of a wrongful act (Article 17 ASR) and coercion of another State to commit a wrongful act (Article 18 ASR). These types of conduct render the directing and controlling State or the coercing State respectively responsible for the directed and controlled act or the act resulting from the coercion.151 Lowe and Lanovoy have both explained this by referring to the directing and controlling State or the coercing State as a ‘puppet master’, which commits the principal wrongful act in question through the ‘puppet State’.152 In such situations, it makes sense to attribute the principal wrong to the puppet master. This analogy does not apply in complicity scenarios, as the complicit State does not control (or coerce) the principal State. It is therefore logical that the conduct constituting the principal violation is not attributed to the assisting State, as it remains the assisted State’s own decision to commit the violation.153 Likewise, it is the assisting State’s own decision to assist in the commission of that violation. The non-attributive nature of the general complicity rule ties into the idea that States should be accountable for their own wrongdoing. States should bear responsibility for the action or inaction of their agents or actors under their control, rather than for what others did or failed to do.154 In this context, 146 See ILC Commentary to Article 2 ASR, para. 12. 147 See also Jackson (2015) 26, explaining that complicity rules are always derivative, but not always attributive. 148 ILC Commentary to Part One, Chapter IV, para. 8. [Emphasis mine] See also para. 5, phrased somewhat differently: ‘(…) exceptional cases where it is appropriate that one State should assume responsibility for the internationally wrongful act of another.’ 149 See ILC Commentary to Article 16 ASR, para. 10, and Commentary to Article 17 ASR, para. 1. See also ILC Yearbook 1978, Vol. II(1), 60, para. 76, under (c) (Ago’s Commentary to former draft Article 25). 150 See again ILC Commentary to Article 16 ASR, para. 10. This point also relates to the nexus element, discussed in 2.1.3.2 below. 151 See the wording of Articles 16-18 ASR and the ILC Commentary to Article 17 ASR, para. 1, and the Commentary to Article 18 ASR, para. 1. 152 V Lowe, ‘Responsibility for the Conduct of Other States’ (2002) 101 Journal of International Law and Diplomacy 1, 4 and Lanovoy (2016) 140. 153 See again Lowe (2002) 4-5. 154 See Jackson (2015) 18-22, citing A Nollkaemper and D Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34(2) Michigan Journal of International Law 359, 386, at 19-20, and 142-144. PROEF PS Joelle Trampert.job_08/28/2024_19B 39 Jackson has referred to the principle of fair labelling, which means that the international responsibility of the State should adequately reflect its degree of involvement and thus its ‘culpability’.155 A complicit State did not commit the principal violation through its assistance; it facilitated it, and it is for that wrongful act of facilitation that it should incur responsibility. Due to the high bar set by the various attribution tests in international law, Lanovoy has argued in favour of an attributive complicity rule regarding State-NSA complicity.156 Such a rule does currently not exist under the law of State responsibility.157 While some human rights bodies’ output can be read as if complicity has been used as a ground for attribution of conduct,158 this is not necessarily the case.159 Instead of using complicity as a basis for attribution of conduct, a better way to conceptualise complicity is to expand its scope of application to State-NSA constellations.160 2.1.2.5. Complicity in wrongs of non-State actors In his first articulation of the complicity rule, Ago contemplated the idea that States could be complicit in the wrongs of ‘[another] subject of international law’.161 That possibility had actually been conceived of two decades earlier by García-Amador, the first Special Rapporteur for the State responsibility project. Under the heading ‘Acts of individuals and internal disturbances’, he included two instances where States would incur responsibility for injuries to aliens, namely, where the State’s organs or officials were ‘manifestly negligent in taking the measures (…) normally taken to prevent or punish’ 155 See again Jackson (2015) 20, 31, and 143. For a critique of the rationale for this principle, see HP Aust, ‘A Path towards the Moral Sophistication of International Law? Some Remarks on Miles Jackson’s “Complicity in International Law”’ (EJIL:Talk!, 13 April 2017) <https://www.ejiltalk.org/a-path-towards-the-moral-sophistication-of-international-law-some-remarks-on-miles-jacksons-complicity-in-international-law/>. On the question whether this principle plays a different role in ICL than in PIL, see E van Sliedregt, ‘New Insights and Structural Clarity: Miles Jackson’s “Complicity in International Law”’ (EJIL:Talk!, 12 April 2017) <https://www.ejiltalk.org/new-insights-and-structural-clarity-miles-jacksons-complicity-in-international-law/>. 156 Lanovoy (2016) 306-329 and Lanovoy (2017). For critique, see I Plakokefalos, ‘The Use of Force by Non-State Actors and the Limits of Attribution of Conduct: A Reply to Vladyslav Lanovoy’ (2017) 28(2) European Journal of International Law 587. See also Jackson (2015) 176-200. 157 Part One, Chapter II of the ASR lists the grounds for attribution of conduct, namely, instances where an NSA is completely dependent on the State (Article 4 ASR), where the State instructs, directs or controls a person or group in carrying out the conduct in question (Article 8 ASR), or where the State acknowledges and adopts that conduct as its own ex post facto (Article 11 ASR). Note that while Article 17 ASR has a State-NSA equivalent in Article 8 ASR, there is no State-NSA complicity rule in the ASR. 158 Lanovoy (2017) 582-583. 159 Plakokefalos (2017) 591-593. I agree with Lanovoy that the ECtHR’s judgement in El-Masri gives the impression that the ECtHR used complicity (or: acquiescence or connivance) as a basis for attribution of conduct, but as Plakokefalos has pointed out too, this and the subsequent rendition cases relate to inter-State complicity. It is also a stretch to understand the subsequent renditions cases as using complicity as a basis for attribution. This is discussed further in Chapter 5, Section 5.2. 160 See Jackson (2015) 201 and further and Plakokefalos (2017) 590. See also R Mackenzie-Gray Scott, State Responsibility for Non-State Actors – Past, Present and Prospects for the Future (Hart 2022) 163, noting that those in favour of an attributive complicity rule appear to oppose the idea of a State-NSA (non-attributive) complicity rule. If the latter exists, the former is unnecessary. 161 ILC Yearbook 1978, Vol. II(1), 52, para. 51, and again at 60, para. 76. Cf A Ollino, Due Diligence Obligations in International Law (CUP 2022) 32. PROEF PS Joelle Trampert.job_08/28/2024_20A 40 acts carried out by ‘ordinary private individuals’ or in the context of ‘internal disturbance’ such as riots or civil strife.162 In cases where the State was not only ‘manifestly negligent’ but also connived or was complicit in the injurious acts of private individuals, that ‘connivance or complicity (…) would constitute an aggravating circumstance for the purposes [of reparations]’.163 While this connivance or complicity was thus not a fully-fledged basis for responsibility, it did presuppose an obligation not to connive or be complicit in the wrongs of NSAs, albeit within the State’s territory. For some reason, this was never picked up on or developed any further.164 But some of García-Amador’s elaborations in the commentary are highly relevant. First, he described ‘connivance’ as a ‘deliberate and intentional failure to prosecute or to punish’. Second, he observed that connivance or complicity were ‘not the same thing as the failure of the authorities to exercise “due diligence” (…); [they deal], rather, with circumstances which denote an attitude utterly at variance with that which the competent organs and authorities would be expected to observe.’ Third, he concluded that in such cases: [T]he degree of the State’s responsibility cannot be the same as in those in which all that can be imputed to the State is manifest negligence in preventing or punishing the injurious acts. On the contrary (…) the responsibility must be greater, in keeping with the gravity of the imputable act or omission.165 While neither any ILC members nor any States followed up on these ideas or Ago’s (re)introduction of the possibility of State-NSA complicity,166 certain legal systems have relied on notions of connivance and complicity to hold States responsible in connections with the acts of NSAs.167 Assigning responsibility on the basis of complicity instead of a failure to fulfil a due diligence obligation to protect, prevent or punish, indeed better expresses the degree of the State’s involvement. There is no logical reason why the general complicity rule would not, by analogy, cover State complicity in the wrongs of NSAs.168 First, such a rule has been accepted in relation to the wrongs of 162 ILC Yearbook 1958, Vol. II, 72, draft Articles 10 and 11. 163 ILC Yearbook 1958, Vol. II, 50 and 72, draft Article 14. See also at 54, para. 22. 164 See Jackson (2015) 176 on ‘the historical failure of international law to regulate the conduct of non-state actors’ and Varga (2020) 295 on the lack of any follow-up in the ILC. 165 See ILC Yearbook 1958, Vol. II, 54, para. 22 for all three quotes. In para. 23, the Special Rapporteur added that ‘complicity depends on the degree of material or effective participation imputable to the authorities.’ This can also be interpreted as a reference to the nexus element of complicity, discussed below. 166 See Varga (2020) 295-296 and Mackenzie-Gray Scott (2019) 4. 167 See Jackson (2015) 190 and further on the Inter-American human rights system’s use of complicity as an attribution rule, and see M Milanovic, ‘Special Rules of Attribution of Conduct in International Law’ (2020) 96 International Law Studies 295, 355-362 on the ECtHR’s use of the ‘acquiescence and/or connivance’ formula as a type of attribution rule and/or complicity rule. See also Milanovic (2022). 168 See Austrian Ministry of Foreign Affairs, ‘Syria: Austrian Position on Arms Embargo’, 13 May 2013, 3, para. 4 via <https://www.theguardian.com/world/julian-borger-global-security-blog/interactive/2013/may/15/austria-eu-syria-arms-embargo-pdf> and J Borger, ‘Austria says UK push to arm Syrian rebels would violate international law’, The Guardian, 14 May 2013; Dutch Advisory Committee on Public International Law (CAVV) Advisory report No. 35 on the provision and funding of “non-lethal assistance” to non-State armed groups abroad’, 25 June 2020, 12, citing Jackson (2015) 202; and T Ruys and L Ferro, ‘The Enemy of My Enemy: Dutch Non-lethal Assistance for ‘Moderate’ Syrian Rebels and the Multilevel PROEF PS Joelle Trampert.job_08/28/2024_20B 41 IOs, and the ASR’s silence on the matter does not mean that the customary rule has not evolved to include (other) NSAs too.169 Second, it is no longer controversial that NSAs do have certain obligations under international law, and that they can be held responsible for transgressions. NSAs which are involved in armed conflicts must respect IHL,170 and individuals can be held responsible for crimes they are prohibited from committing under domestic law and ICL.171 This means that with respect to the principal violations central to this study, the requirement that the assisting State and the assisted actor are bound by the same underlying obligation would be fulfilled.172 The substance of the obligation matters for this requirement, not the source.173 In the Bosnian Genocide case, the ICJ also recognised a State-NSA complicity rule in the context of genocide, holding that ‘[a]lthough [Article 16 ASR], because it concerns a situation characterized by a relationship between two States, is not directly relevant to the present case, it nevertheless merits consideration’, and applied it by analogy.174 Third, the very rationale for the general complicity rule is that ‘a State cannot do by another what it cannot do by itself.’175 If a State-NSA analogue would not exist, States could do precisely this, as they would not run the risk of incurring responsibility for complicity in the wrongs of NSAs.176 Accepting that complicity also covers State-NSA assistance avoids unprincipled accountability gaps and keeps the structure of the law of State responsibility intact. The law of State responsibility sets a high bar for attribution of NSAs’ conduct to the State, and leaving the debate on the respective thresholds set by the International Criminal Tribunal for the former Yugoslavia (ICTY), the ICJ, or the ECtHR aside,177 it is fairly undisputed that aid or assistance alone does not reach a level of control that warrants attribution of conduct.178 Assistance ex ante does also not equate with acknowledgement and Violation of International Law’ (2021) 50 Netherlands Yearbook of International Law 2019 333, 348, including fn 89, and at 369, concluding that ‘it cannot be excluded that the Netherlands incurred secondary State responsibility to the extent that its conduct contributed to human rights and IHL violations carried out by the allied armed groups.’ See also HRC General Comment No. 36 para 63. See further Mackenzie Gray-Scott (2022) 171-175, also referencing the Austrian position, other State practice, and the HRC’s General Comment, but concluding that ‘it cannot be said with confidence that a general complicity rule that incorporates non-sate actors exists as part of positive law. The limited state practice and opinio juris suggest that such a rule is currently developing.’ See for a contrasting view Ollino (2022a) 213-214. 169 See Article 58 ARIO. See for this point also Mackenzie Gray-Scott (2022) 165. 170 See Article 3 common to the 1949 Geneva Conventions. 171 Namely before an international criminal tribunal or a before a domestic court on the basis of, inter alia, universal jurisdiction. 172 See Article 16(b) ASR. See also Jackson (2015) 214-16, proposing a non-State analogue to the rule reflected in Article 16 ASR, and R Goodman and V Lanovoy, ‘State Responsibility for Assisting Armed Groups: A Legal Risk Analysis’ (Just Security, 22 December 2016) <https://www.justsecurity.org/35790/state-responsibility-aiding-assisting-armed-groups-legal-risk-analysis/>. 173 See also Al-Saadoon and Others v Secretary of State for Defence [2015] EWHC 715 (Admin), 17 March 2015, para. 195. 174 ICJ Bosnian Genocide para. 420. 175 ILC Commentary to Article 16 ASR, para. 6. 176 See also Jackson (2015) 215. 177 Cf in particular Prosecutor v Duško Tadić, Judgement, Case No. IT-94-1-A (ICTY, 15 July 1999) para. 145 and ICJ Bosnian Genocide paras 402-406. See also S Talmon, ‘The Responsibility of Outside Powers for Acts of Secessionist Entities’ (2009) 58 International and Comparative Law Quarterly 493 and Milanovic (2020) 349 and further. 178 Articles 4 and 8 ASR. PROEF PS Joelle Trampert.job_08/28/2024_21A 42 adoption of conduct ex post.179 Complicity could be a novel or regime-specific ground for attribution, but it is debatable whether this ground does or even should exist under international law. Of course, when NSAs commit an international crime or a crime constituting a serious human rights violation, States can incur responsibility for failing to prevent or punish that wrongdoing.180 But I agree with García-Amador that this will not always be satisfying. 2.1.3. The constitutive elements of the general complicity rule Turning now to the conditions of complicity, the general complicity rule has four constitutive elements: the conduct constituting the act of assistance, the nexus between that conduct and the principal violation, the fault or knowledge element as included in Article 16(a) ASR, and the opposability requirement as included in Article 16(b) ASR. These are cumulative conditions, which means that all must be met for responsibility for complicity to arise. 2.1.3.1. The material element: the act of assistance Many types of conduct can constitute assistance, and the material element can take various forms. Some types of conduct that can assist the principal actor in committing the principal violation are specifically prohibited under international law without any exception, such as the transfer of chemical weapons.181 More often, however, the conduct constituting the act of assistance will in itself be lawful, but – to use Ago’s words – will ‘become tainted with international wrongfulness’ when it contributes to the commission of the principal wrong.182 Depending on the context, certain types of conduct might already be prohibited by a specific rule of international law, such as permitting a State to use one’s territory for the commission of an act of aggression against a third State.183 Other types of conduct are not specifically regulated, but are captured by the general complicity rule and considered inherent in the principal obligation breached. The ILC’s Commentary gives the examples of providing an essential facility or financing the activity that is the principal violation, providing means for obstructing an international waterway, facilitating the abduction of a person on foreign soil, or assisting in the destruction of property belonging to nationals of a third country.184 Providing material aid to a State 179 Article 11 ASR. 180 See again Jackson (2015) 176. 181 See Article 1(a) of the Chemical Weapons Convention. See on this Lanovoy (2016) 186-187. See also ILC Commentary to Article 16 ASR, paras 2 and 7, and ILC Yearbook 1978, Vol. I, 239, para. 12. 182 ILC Yearbook 1978, Vol. II(1), 52, para. 52. 183 See Article 3(f) of the Definition of Aggression, contained in UN General Assembly Resolution 3314 (XXIX), 14 December 1974. See on this Jackson (2015) 136-147. See again ILC Commentary to Article 16 ASR, paras 2 and 8. 184 ILC Commentary to Article 16 ASR, para. 1. See also ILC Commentary to draft Article 27 (as adopted on first reading in 1996), para. 13, listing these examples as ‘assistance by another State for the purpose of PROEF PS Joelle Trampert.job_08/28/2024_21B 43 which uses that aid to commit human rights violations can also entail the aiding and assisting State’s responsibility for complicity.185 As many types of conduct can constitute assistance, it is helpful to note what assistance is not. In the very first formulation of the general complicity rule, Ago excluded cases of advice or incitement (including persuasion or instigation) of another State to commit a wrongful act.186 The main reason for this was that the decision to commit a wrongful act is the sovereign decision of the principal State, and of that State alone.187 Ago also excluded cases where States exerted pressure, which at some point might amount to coercion and thereby trigger a different form of responsibility.188 On the second reading of the ASR, Crawford upheld the exclusion of incitement along with advice and encouragement, and added to the list of excluded conduct conspiracy, assistance after the commission of the principal wrongful act (assistance ‘after the fact’), and joint or collective action, which results in direct responsibility.189 These notions are still regarded as separate from complicity and are therefore excluded from the scope of the rule reflected in Article 16 ASR.190 The notion of instigation and assistance after the fact are both worth a closer look. Jackson has criticised the assumption in international law that complicity does not include conduct that influences the principal actor in its decision to commit the wrong,191 and that in the absence of specific rules, there would be no general rule prohibiting State instigation.192 International law’s lack of attention for State influence or instigation below the level of coercion permits and even exacerbates power imbalances between States. As an example of this, Jackson points to Australia’s policy of ‘offshore processing’ of people seeking asylum on, or rather by, several Pacific island small States in exchange for substantial aid packages.193 The poor detention conditions and ill-treatment of the people commission of a less typical and less serious offence’, instead of ‘outside participation (…) [in] an “international crime”’ in the sense of draft Article 19. See on draft Article 19, M Spinedi, ‘International Crimes of State – The Legislative History’ in JH Weiler, A Cassese and M Spinedi (eds) International Crimes of State – A Critical Analysis of the ILC's Draft Article 19 on State Responsibility (De Gruyter 1989) and NHB Jørgensen, The Responsibility of States for International Crimes (OUP 2000) 49-55. 185 ILC Commentary to Article 16 ASR, para. 9. See also ILC Commentary to draft Article 27, para. 13, giving the examples of supplying weapons or other goods to a State that is preparing to commit an act of aggression or to commit genocide, that has in place a regime of apartheid, or is maintaining colonial domination by force. Regarding genocide, the Commentary added in a footnote that Article III of the Genocide Convention ‘includes “complicity in genocide” in the list of acts punishable under the Convention. It is not specified, however, whether complicity by another State in the commission of genocide by a particular government does or does not come within the terms of this provision.’ I return to this point below. 186 See ILC Yearbook 1978, Vol. II(1), 54-56, paras 61-65. Cf ILC Commentary to draft Article 27, para. 13: ‘Even incitement may sometimes assume forms that make it, in fact, aid or support for the “incited” State to commit the wrongful act.’ 187 See ILC Yearbook 1978, Vol. II(1), 55, para. 63. 188 Id, 56-57, paras 66-69. See also Article 18 ASR. 189 See ILC Yearbook 1999, Vol. II(1), 45-47, paras 159-164, at 48, para. 170, and at 55-56, paras. 213. 190 See ILC Commentary to Part One, Chapter IV of the ASR, para. 9. 191 Jackson (2015) 209-210 on State encouragement or influence of NSAs specifically. 192 Id, 154-155 and M Jackson, ‘State Instigation in International Law: A General Principle Transposed’ (2019) 30(2) European Journal of International Law 391, 409-410. 193 See Jackson (2019) 409, and T Penovic and A Dastyari, ‘Boatloads of Incongruity: the Evolution of Australia’s Offshore Processing Regime’ (2007) 13(1) Australian Journal of Human Rights 33, 36. PROEF PS Joelle Trampert.job_08/28/2024_22A 44 held on Nauru, for example, are well-known.194 Without embarking on an assessment of Australia’s responsibility here, this example would strengthen the argument for a general complicity rule based on instigation, alongside the current one based on assistance. While Jackson’s arguments are convincing, the conclusion for this study must be that instigation is currently not considered to be within the scope of the rule reflected in Article 16 ASR.195 Australia’s responsibility for offshore processing could also be established on another basis, such as qualifying the aid packages as assistance, or qualifying Australia’s conduct as a breach of the prohibition of refoulement or, alternatively, a positive obligation of due diligence.196 Assistance provided after the principal violation has been committed does not qualify as assistance in the commission of that wrongful act and will therefore not result in responsibility for complicity either.197 This makes sense, as the assisting State will not have made a meaningful difference in the principal actor’s ability or decision to commit the principal wrong.198 However, the ILC made two caveats: first, if a State’s assistance ex post (also) takes the form of acknowledgment and adoption of the principal’s conduct as its own, that conduct can be attributed to the State pursuant to the rule as laid down in Article 11 ASR. This leads to the State’s direct responsibility for that conduct (and not to responsibility for complicity in that conduct).199 This is an entirely different legal concept and is outside the scope of complicity altogether. Second, if the principal violation qualifies as a ‘serious breach’ of a jus cogens norm and has created an unlawful ‘situation’, States are under an obligation not to render aid or assistance in ‘maintaining’ that situation.200 If they do, they can incur responsibility for breaching this obligation, which is included in the ASR in Article 41(2). This responsibility does not necessarily equate with responsibility for complicity in the principal wrong. I return to this in Section 2.2 below. A final but no less important issue is whether States can render assistance or be complicit in the principal violation by omission. The Commentary to Article 16 ASR is virtually silent on this point,201 194 See e.g. B Freye and FH McKay, ‘An Investigation of Incident Reports from the Detention Center Nauru: Has Australia Breached the Universal Declaration of Human Rights?’ (2021) 20(4) Journal of Human Rights, 449, and C Henderson, ‘Australia’s Treatment of Asylum Seekers: From Human Rights Violations to Crimes Against Humanity’ (2014) 12(5) Journal of International Criminal Justice, 1161. 195 This is also not what Jackson has argued; he has made the case for a non-instigation analogue, that would also fall under the umbrella notion of complicity. 196 This might be considered undesirable in light of the principle of fair labelling. 197 See again ILC Commentary to Part One, Chapter IV of the ASR, para. 9. Assistance provided after the commission of the principal violation has also been excluded from this study. 198 See also Jackson (2015) 11. 199 See United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), Judgement, ICJ Reports 1980, 3 (ICJ, 24 May 1980), ILC Commentary to Article 11, especially para. 6, and Makuchyan and Minasyan v Azerbaijan and Hungary, App No. 17247/13 (ECtHR, 26 May 2020). 200 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136 (ICJ, 9 July 2004) para. 159, and Separate Opinion of Judge Robinson, para. 89, to Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, ICJ Reports 2019, 95 (ICJ, 25 February 2019). 201 The only relevant passage I have identified is in the ILC’s Commentary to draft Article 27 (as adopted on first reading in 1996), para 2: ‘It is thus especially important to make it clear that the participation referred to in this article does not relate to cases in which the conduct of a State takes the form, not of actions or omissions PROEF PS Joelle Trampert.job_08/28/2024_22B 45 and there was no significant debate on it within the ILC.202 Article 2 ASR, which sets out the elements of an internationally wrongful act, stipulates that conduct resulting in a wrongful act can consist of ‘an action or omission’, with the Commentary noting that ‘it may be difficult to isolate an “omission” from the surrounding circumstances which are relevant to the determination of responsibility’.203 Some of the ILC’s examples of assistance included in its Commentary to Article 16 ASR can arguably be framed as omissions too, such as the allegation that Sudan had assisted Iraq to manufacture chemical weapons by allowing Iraqi technicians to use Sudanese installations,204 or that the UK had assisted the US to launch fighter planes to attack Libyan targets by permitting the US to use several of its air bases.205 The question whether a State can incur responsibility for complicity in wrongdoing by omission has, as Jackson has put it, ‘less to do with the ILC and more to do with the ICJ’s holding in the Bosnian Genocide case.’206 The Bosnian Genocide case concerned the allegations of genocide committed in the context of the collapse of the Socialist Federal Republic of Yugoslavia in the early 1990s and the armed conflict between the different ethnic groups in Bosnia and Herzegovina specifically. In 1993, Bosnia instituted proceedings against the Federal Republic of Yugoslavia (FRY, later Serbia and Montenegro and the continuator of the Socialist Federal Republic of Yugoslavia) before the ICJ. The ICJ’s jurisdiction is not automatic, and based entirely on States’ consent.207 As Bosnia had submitted its application on the basis of the dispute settlement clause in the Genocide Convention, the ICJ was only competent to adjudicate on Serbia’s responsibility in relation to allegations of its involvement in acts of genocide.208 In its judgement, the ICJ considered Serbia’s responsibility on three alternative grounds, namely whether Serbia was responsible for committing the Srebrenica genocide; whether it was responsible for complicity in the genocide; or whether it was responsible for failing to prevent genocide.209 The difference between complicity and effective control warranting attribution of conduct (and resulting in intended to make it possible or easier for another State to commit an internationally wrongful act, but rather of action specifically intended to effect, with another State or other States, the breach of a given international obligation. In other words, the “participation” considered here excludes cases in which a State is or becomes a co-perpetrator of an internationally wrongful act.’ This is a convoluted way of saying that the notion of ‘participation’ or complicity consisted of ‘actions or omissions intended to make it possible or easier for another State to commit a wrongful act’. 202 Special Rapporteur Ago in his Seventh report concluded that ‘failure, as such, can certainly not be defined as a form of complicity’, whereas Drafting Committee Chairman Schwebel stated that ‘the last part of the text adopted by the Drafting Committee specified that the giving of such aid or assistance would be “wrongful” even if, under other conditions, the actions or omissions in question would be lawful under international law.’ See ILC Yearbook 1978, Vol. II(1), 54, para. 57, and ILC Yearbook 1978, Vol. I, 270, para. 5. [Emphasis mine] On Ago’s remark, see also Jackson (2015) 156; on Schwebel’s conclusion, see P Palchetti, ‘State Responsibility for Complicity in Genocide’ in P Gaeta (ed.) The UN Genocide Convention: A Commentary (OUP 2009) 385, fn 15. See also Aust (2011) 226-227. 203 ILC Commentary to Article 2 ASR, para. 4. 204 ILC Commentary to Article 16 ASR, para. 7. 205 Id, para. 8. 206 Jackson (2015) 155. 207 See Article 36 ICJ Statute. 208 See Article IX Genocide Convention. 209 ICJ Bosnian Genocide para. 379. The ICJ was also tasked with ruling on whether Serbia had complied with its obligation to punish genocide, but this is not dealt with in this study. PROEF PS Joelle Trampert.job_08/28/2024_23A 46 direct responsibility) is fairly clear,210 but the line between complicity and failing to prevent is harder to draw. The ICJ identified two main points of distinction between complicity in genocide and a breach of the obligation to prevent genocide, namely the nature of the State’s conduct and its knowledge.211 On this first point, the ICJ held that: [C]omplicity always requires that some positive action has been taken to furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being committed. In other words, while complicity results from commission, violation of the obligation to prevent results from omission; this is merely the reflection of the notion that the ban on genocide and the other acts listed in Article III, including complicity, places States under a negative obligation, the obligation not to commit the prohibited acts, while the duty to prevent places States under positive obligations, to do their best to ensure that such acts do not occur.212 The classification of the prohibition of complicity in genocide as a negative obligation and the obligation to prevent genocide as a positive obligation makes sense; States are required to refrain from acts that would assist in the commission of genocide by another, and are under an obligation of conduct to ensure that genocide is not committed by another. But this need not automatically mean that complicity always requires some positive action, and there is a difference between the nature of the obligation (negative or positive) and the nature of the conduct (active or passive). One might say that not too much should be read into the paragraph above when interpreting the general complicity rule, as the ICJ’s statement would relate to complicity in genocide specifically. But given that the ICJ saw ‘no reason to make any distinction of substance between “complicity in genocide”, within the meaning of [Article III(e) of the Genocide Convention], and the “aid or assistance” of a State in the commission of a wrongful act by another State within the meaning of (…) Article 16 [ASR]’,213 it is more likely that the ICJ’s holding applies to the general complicity rule too.214 Most authors contest the idea that the general complicity rule always requires positive action and that omissions are therefore categorically excluded.215 I agree – States can be complicit by omission, 210 ICJ Bosnian Genocide para. 419. 211 See 2.1.3.3 below. 212 ICJ Bosnian Genocide para. 432. [Emphasis mine] 213 Id, para. 420. 214 See also Jackson (2015) 155-156. 215 See e.g. Lowe (2002) 5-6; A Gattini, Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s Genocide Judgment’ (2007) 18(4) European Journal of International Law 695, 702-703; G Nolte and HP Aust, ‘Equivocal Helpers – Complicit States, Mixed Messages and International Law’ (2009) 58 International and Comparative Law Quarterly 1, 10 (fn 43); Palchetti (2009) 385-386; F Latty, ‘Actions and Omissions’ in J Crawford, A Pellet, S Olleson, K Parlett (eds) The Law of International Responsibility (OUP 2010) 359; Aust (2011) 225-230; Jackson (2015) 156-157 and 210-211; Lanovoy (2016) 96-97; Pacholska (2020) 97; Milanovic PROEF PS Joelle Trampert.job_08/28/2024_23B 47 for instance when they allow their territory to be used by a State in order to carry out an armed attack against a third State.216 Whether this is an act or an omission largely boils down to how it is framed: allowing or permitting something might involve a positive act in the form of an express decision, but it might also stem from tacit acceptance or consent.217 If the assistance is continuing in nature, it might also vary over time. In the context of the extraordinary rendition programme, Poland’s initial decision to allow the US to use its territory for a black site is a positive act, but its acquiescence and connivance in what subsequently happened at those sites can be qualified as an omission that is still an act of assistance.218 Overall, Poland’s factual conduct is best seen as an amalgam of numerous culpable acts and omissions, and it is also by these failures to intervene that it facilitated the extraordinary rendition programme and the serious human rights violations that were perpetrated under the guise of the ‘war on terror’. Therefore, the totality of Poland’s conduct deserves to be qualified as complicity, which is exactly what the ECtHR did.219 2.1.3.2. The nexus element: the degree of contribution Not each and every act of assistance will lead to responsibility for complicity; the assistance must have made an actual difference in the principal actor’s ability to commit the principal violation.220 In light of all the different types of conduct which can constitute assistance (including by omission) it is generally accepted that the assistance must have contributed significantly to the principal violation.221 The ILC’s (2021) 1276 (NB: ‘The ILC’s view’ should be ‘the ICJ’s view’, see text with fn 20). Cf Crawford (2013) 403-405; and Mackenzie-Gray Scott (2022) 141-144, noting that while it is ‘not inconceivable to include omissions’, it would pose problems for distinguishing complicity from positive obligations of due diligence. See finally the judgement of Germany’s Federal Administrative Court relating to a German major’s refusal to obey an order due to his fear of and conscientious objection to contributing to Germany’s participation in the US and UK’s unlawful use of force against Iraq. Relevant in this context is the court’s statement that ‘[e]in völkerrechtliches Delikt kann durch ein Tun oder – wenn eine völkerrechtliche Pflicht zu einem Tun besteht – durch Unterlassen begangen werden.’ See Federal Administrative Court, ECLI:DE:BVerwG:2005:210605U2WD12.04.0, 21 June 2005. See again Pacholska (2020) 97 and Aust (2011) 118-119, albeit in a different context. 216 ILC Commentary to Article 16 ASR, para 8. Note, however, that Article 3(f) of the Definition of Aggression is phrased as ‘The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State’. [Emphasis mine] Jackson has concluded that not too much should be made of this wording; granting permission will suffice. See Jackson (2015) 140. 217 See also Seibert-Fohr (2017) 682 and 685 making the same point. 218 See ECtHR Abu Zubaydah v Poland para. 512 and Al Nashiri v Poland para. 517. 219 The cases against Poland are discussed in Chapter 5. Note also that the ECtHR included Article 16 ASR under the heading of ‘Relevant International Law’, but that it did not directly apply it in its assessment of Poland’s responsibility under the Convention. 220 See also See ILC Yearbook 1978, Vol. I, 229, para. 5, in response to Ago’s first articulation of the complicity rule. 221 See Quigley (1986) 120-121; Lowe (2002) 5, with reference to the ILC’s Commentary to Article 16, para. 5, and ILC Yearbook 1999, Vol. II(1), 50, para. 180 (but this should be para. 182) and 56, note following draft Article 27, para. 3; Nolte and Aust (2009) 10 (noting that assistance that is ‘only remotely or ‘indirectly’ related’ is excluded) and at 12; Aust (2011) 215 (concluding that the assistance ‘must have made it ‘substantially’ easier to commit the internationally wrongful act’); Crawford (2013) 402-403 (speaking of ‘substantial involvement on PROEF PS Joelle Trampert.job_08/28/2024_24A 48 Commentary to Article 16 ASR also states: ‘There is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act.’222 If the assistance is essential in the sense of a but-for cause, that would likely entail the assisting State’s joint responsibility for the principal violation together with that of the principal actor.223 This situation is covered by the rule reflected in Article 47 ASR and is outside the scope of the study.224 Moreover, it is hard to imagine any type of contribution in a relationship of complicity being absolutely necessary: funds, goods, information, or training may all be instrumental, but will virtually never be a but-for cause of the principal violation.225 Scholars have observed the internal inconsistencies in the ILC’s Commentary where it relates to the nexus.226 The Commentary to Chapter IV of Part One of the ASR starts by emphasising that: [A] State providing financial or other aid to another State should not be required to assume the risk that the latter will divert the aid for purposes which may be internationally unlawful. Thus, it is necessary to establish a close connection between the action of the assisting (…) State on the one hand and that of the State committing the internationally wrongful act on the other.227 The Commentary then continues that the assisting State ‘should be aware of the circumstances of the internationally wrongful act in question, and [that there should be] a specific causal link between that act and the conduct of the assisting (…) State.’228 The ILC’s Commentary refers to the causal link and the knowledge requirement in the same breath throughout, which makes it difficult to distinguish how these elements operate independently from one another.229 Of course, it is somewhat artificial to separate them entirely, and a significant amount of assistance over a longer period of time will also the part of the complicit state’); Jackson (2015) 158; (speaking of ‘material facilitation’, with reference to Lowe (2002) and Crawford’s Second report); H Moynihan, ‘Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism’ (2016) Chatham House Research Paper 1, 8-10 and (2018) 469; and Milanovic (2021) 1276. 222 ILC Commentary to Article 16 ASR, para. 5. [Emphasis mine] See also ILC Commentary to Article 14 ARIO, para. 4, repeating the ‘significant contribution’ standard in the case of responsibility of an IO in connection with the wrongful act of a State or another IO. 223 ILC Commentary to Article 16 ASR, para. 10, with reference to Article 47 ASR. See also ILC Yearbook 1978, Vol. I, 239, para. 11, and Crawford (2013) 402, with reference to I Brownlie, System of the Law of Nations: State Responsibility Part 1 (Clarendon Press 1983) 191. Aust has noted that a high causality standard might even absolve the principal actor from part of its responsibility, see Aust (2011) 217. 224 On the difference between joint and several responsibility and complicity, see Lanovoy (2016) 147-160. 225 Whether or not this is convincing largely depends on how one understands ‘causation’. If causation is understood as the direct effect of an action, which will be interrupted by the volitional action of another actor, then assistance can never be the cause proper, as the principal actor will have acted wilfully. But if causation is understood as ‘making a difference to what happens in the world’, then the fact that the principal actor freely chooses to act does not render an enquiry into causation moot. See further on this Jackson (2015) 43, citing C Kutz, ‘Causeless Complicity’ (2007) 1 Criminal Law and Philosophy 289, 294. See also Lanovoy (2016) 185. 226 See especially Crawford (2013) 402, Lanovoy (2016) 94-98 and 184-186, Pacholska (2020) 98-99, and V Lanovoy, ‘Causation in the Law of State Responsibility’ (2022) British Yearbook of International Law 1, 27-28. 227 ILC Commentary to Part One, Chapter IV of the ASR, para. 8. [Emphasis mine] See also Commentary to Article 16 ASR, para. 4. 228 Id. 229 See ILC Commentary to Article 16 ASR, paras 3, 5 and 10. PROEF PS Joelle Trampert.job_08/28/2024_24B 49 make it more likely that the State had knowledge of the circumstances of the principal wrongful act.230 Besides mentioning the nexus element and the knowledge requirement in tandem, the Commentary to Article 16 ASR also alludes to different causality standards. The requirement that the assistance is ‘given with a view to facilitating the commission of the wrongful act, and must actually do so’ limits the general complicity rule’s scope of application to cases where the assistance is ‘clearly linked to the subsequent wrongful conduct’.231 It is not at all clear from the Commentary what ‘clearly linked’ means, besides that the assistance does not have to be ‘essential’; a ‘significant’ contribution is sufficient.232 It is therefore slightly puzzling that in its introductory paragraph to Article 16 ASR, the ILC gives the example of a State ‘knowingly providing an essential facility or financing the activity in question.’233 The Commentary’s most confusing part comes in the paragraph on the content of the assisting State’s responsibility, when it adds that ‘the assistance may have been only an incidental factor in the commission of the [principal wrongful] act, and may have contributed only to a minor degree, if at all, to the injury suffered.’234 The Commentary does not make this explicit at all, but there appear to be two different causality tests at play: first, there must be a clear link (which must have been a significant contribution, but may also have been ‘only an incidental factor’) between the act of assistance and the principal wrongful act; second, there must be a connection (which may have been minor) between the act of assistance and the injury stemming from the principal wrongful act, which is, for the purpose of this study, the harm suffered by an individual or a group.235 The second test relates to the obligation to make full reparation for the injury caused by the State’s internationally wrongful act,236 which is outside the scope of this study and has been discussed in other works.237 The focus here is on the first test, i.e., the extent to which the assisting State’s conduct contributed to the principal violation being committed by the principal actor. In contrast to the knowledge requirement, the nexus element has received much less 230 See on this also D Mauri, ‘On American Drone Strikes and (Possible) European Responsibilities: Facing the Issue of Jurisdiction for “Complicity” in Extraterritorial Targeted Killings’ (2019) 28(1) Italian Yearbook of International Law 249, 255, and Lanovoy (2022) 15. 231 ILC Commentary to Article 16 ASR, para. 5. [Emphasis mine] 232 Id. 233 Id, para. 1. See also Jackson (2015) 158. 234 Id, para. 10. [Emphasis mine] 235 See also V Lanovoy, ‘Complicity in an Internationally Wrongful Act’ in A Nollkaemper and I Plakokefalos (eds) Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (CUP 2014) 161, and A Gattini, ‘Breach of International Obligations’ in the same volume at 28. 236 See Article 31(1) ASR, which explicitly mentions that the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. 237 See e.g. A Balta, What’s Law Got to Do with It? Assessing International Courts’ Contribution to Reparative Justice for Victims of Mass Atrocities through their Reparations Regimes (diss. Tilburg 2020) and A Ollino, ‘Causality in the law of State responsibility: Considerations on the Congo v Uganda case’ (2022) Questions of International Law, Zoom-in 95, 5. For complicity, see Aust (2011) 274 and further, and Lanovoy (2016) 261 and further. PROEF PS Joelle Trampert.job_08/28/2024_25A 50 attention in scholarship.238 Lanovoy, who has examined the role of causation in the law of State responsibility in detail, has also highlighted the two different causality tests with respect to complicity.239 Lanovoy is critical of the higher standard of a ‘significant’ contribution for the first test, and questions whether it is even required for responsibility for complicity under customary international law.240 Instead, he argues that ‘proof of a simple factual link between the aid or assistance (cause), and the internationally wrongful act of the principal state (effect), should be sufficient.’241 While this would seemingly lower the threshold for responsibility for complicity, it does not entirely solve the practical problem of how to determine whether the principal violation is truly the effect of the State’s assistance. This will be especially difficult in scenarios where the principal actor also acquires support elsewhere or decides not to use (all or most of) the support provided by the State in question.242 The requirement that the contribution is significant is meant to limit cases where responsibility for complicity will arise,243 the rationale for this being that States should generally not be required to ‘assume the risk’ that the recipient would use the aid or assistance in an unlawful way.244 Given that the general complicity rule covers all wrongful acts, this is understandable.245 But if the principal violation is particularly egregious, and the resulting harm is exceptionally grave, it is questionable whether this standard is justified. It also remains unclear why the ILC added that ‘the assistance may have been only an incidental factor in the commission of the primary act’;246 can an incidental factor also be a significant contribution? In its Commentary to Article 14 of the draft Articles on the Responsibility of International Organizations (ARIO), the ILC repeated the significant contribution standard.247 As most scholars agree that this is the requisite degree of involvement for complicity and as there are no indications from State practice to the contrary,248 it can be concluded that this is the applicable test. 238 See e.g. Gattini (2014) 28–31, I Plakokefalos, ‘Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity’ (2015) 26(2) European Journal of International Law 471, and Lanovoy (2022). 239 Lanovoy (2022) 27: ‘the ILC purported to set out a higher causal standard for the responsibility to accrue (‘significantly facilitate’), and a lower one for the reparation in cases of complicity (‘contribution only to a minor degree, if at all, to the injury’).’ 240 Id, 28. 241 Id, also at 31 and 79. 242 Id, 29. See also Lanovoy (2016) 168-172. 243 See also Lanovoy (2022) 28. 244 ILC Commentary to Part One, Chapter IV of the ASR, para. 8, and to Article 16 ASR, para. 4. Note that the ILC used similar language regarding conduct instructed, directed or controlled by a State as a ground for attribution: ‘a State, in giving lawful instructions to persons who are not its organs, does not assume the risk that the instructions will be carried out in an internationally unlawful way.’ [Emphasis mine] See Commentary to Article 8 ASR, para. 8. 245 Note, however, the condition that the assisting State and the principal actor are both bound by the obligation breached by the latter, see Article 16(b) ASR. 246 See again ILC Commentary to Article 16 ASR, para. 10. 247 See again ILC Commentary to Article 14 ARIO, para. 4. See also Pacholska (2020) 98. 248 The ILC did not provide any further guidance on the nexus element before finalising the ASR. In their comments on the Drafting Committee’s articulation of draft Article 16 ASR in 2000, the US urged the ILC to ‘fully develop the issue of what threshold of participation is required by the phrase “aids or assists” in the commentary to article 16, as the current draft (…) provides little guidance on this issue.’ Similarly, the UK PROEF PS Joelle Trampert.job_08/28/2024_25B 51 Another sensible conclusion is that ‘the level of contribution required for aid or assistance ultimately depends on the circumstances of the particular case’, especially as the nexus is one of several factors that needs to be taken into account.249 As for what a ‘significant contribution’ might look like in practice,250 a paragraph in the ICJ’s analysis of Serbia’s potential responsibility for complicity in genocide provides some guidance: [T]he quite substantial aid of a political, military and financial nature provided by [Serbia] to the Republika Srpska and the VRS, beginning long before the tragic events of Srebrenica, continued during those events. There is thus little doubt that the atrocities in Srebrenica were committed, at least in part, with the resources which the perpetrators of those acts possessed as a result of the general policy of aid and assistance pursued towards them by [Serbia].251 Ultimately, the ICJ found that Serbia was not responsible for complicity in genocide as it could not be established ‘beyond any doubt’ that Serbia had provided the support to the Republika Srpska army (VRS) leaders – ‘who decided upon and carried out those acts of genocide’ – with the knowledge of their specific intent; a necessary element of the crime of genocide.252 I will return to this point in the paragraph below and again in Chapter 3. While no firm conclusions can be drawn on the basis of one case, this ‘quite substantial aid’ – ‘substantial’ being, linguistically speaking, similar to ‘significant’ – would likely have fulfilled the nexus element of complicity.253 2.1.3.3. The knowledge element: objects and standards The ASR do not contain any general rule on fault, knowledge, or ‘wrongful intent’.254 Under the law of State responsibility, it is irrelevant whether the individuals whose conduct can be attributed to the State acted with any specific knowledge or intent.255 However, certain primary rules may require some form of knowledge or intent on the part of the State. If this is so, then that must be established in order for responsibility for a breach of the rule to arise. Examples of primary rules with a knowledge or intent requirement are the prohibition of genocide implicit in the Genocide Convention, which requires commented that ‘[t]he expressions “in the commission” and “knowledge of the circumstances of” should be clarified so as to ensure that the aid or assistance must be clearly and unequivocally connected to the subsequent internationally wrongful act.’ See ILC Yearbook 2001, Vol. II(1), 52. 249 See Nollkaemper et al (2020) 41. 250 As Lanovoy has also noted, the comments and practice of States also provide little guidance. See again Lanovoy (2016) 172, and Aust (2011) 217. 251 ICJ Bosnian Genocide para. 422. [Emphasis mine] 252 Id. 253 Cf Lanovoy (2016) 185. 254 See ILC Commentary to Article 2 ASR, paras 3 and 10, and to Part One, Chapter IV of the ASR, para. 8. On the remnants of fault in the ASR, see A Gattini, ‘Smoking/No Smoking: Some Remarks on the Current Place of Fault in the ILC Draft Articles on State Responsibility’ (1999) 10(2) European Journal of International Law 397. 255 As for who must have knowledge or intent, the normal rules of attribution apply. See Moynihan (2018) 465, and Milanovic (2021) 1281-1284. See also Bonafè (2009) 119 and further. PROEF PS Joelle Trampert.job_08/28/2024_26A 52 specific intent to destroy a protected group,256 or the prohibition of refoulement in IHRL, which requires the State to assess the risks or ill-treatment prior to returning the person in question.257 The general complicity rule has a knowledge requirement too, which is included in the text of Article 16(a) ASR: a State can be held responsible for assisting in the commission of a wrongful act if ‘that State does so with knowledge of the circumstances of the internationally wrongful act’. Ago’s very first conception of the rule did not include a knowledge (or intent) requirement in the text, but the Special Rapporteur explained in his report that: The very idea of ‘complicity’ in the internationally wrongful act of another necessarily presupposes an intent to collaborate in the commission of an act of this kind, and hence, in the cases considered, knowledge of the specific purpose for which the State receiving certain supplies intends to use them. Without this condition, there can be no question of complicity.258 The wording of the general complicity rule as laid down in Article 16 ASR has changed since 1978. However, the ILC’s Commentary to draft Article 27 adopted on first reading in 1996, which included in the text the clause that responsibility for aid or assistance constitutes an internationally wrongful act ‘if it is established that it is rendered for the commission of an internationally wrongful act carried out by the latter,’259 repeated Ago’s ideas for the ‘mental’ state of the assisting State in the block quote above almost verbatim.260 The Commentary to draft Article 27 also stressed that what mattered was that the conduct of the assisting State ‘was intended to enable another State to commit’ the wrongful act261 and that the assistance must be rendered ‘with the specific object of facilitating the commission of the principal internationally wrongful act in question.’262 The assisting State would not be held responsible for complicity if the ‘assistance provided without such intention could be used by the recipient State for unlawful purposes (...).’263 Moreover, it was not sufficient for the knowledge element to be presumed; it must be established.264 These conditions have also found their way into the ILC’s Commentary to Article 16 ASR, albeit not always so explicitly. The Commentary now states: Article 16 limits the scope of [the rule assigning] responsibility for aid or assistance in three ways. First, the relevant State organ or agency providing aid or assistance must be aware of the circumstances making 256 For the definition of the crime of genocide, see Article II Genocide Convention. On the State obligation not to commit genocide, see ICJ Bosnian Genocide para. 166. 257 See Article 3 CAT. 258 ILC Yearbook 1978, Vol. II(1), 52-60, para. 72. See also para. 76. [Emphasis mine] 259 Draft Article 27 ASR (1996). 260 ILC Commentary to draft Article 27 ASR (1996), para. 14. 261 Id. 262 Id, para. 18. 263 Id. 264 Id. PROEF PS Joelle Trampert.job_08/28/2024_26B 53 the conduct of the assisted State internationally wrongful; secondly, the aid or assistance must be given with a view to facilitating the commission of that act, and must actually do so (…).265 This first condition for complicity is expressly included in Article 16(a) ASR, as cited above. The second condition, which is not included in the text, is an additional criterion, with a different object. Knowledge also has different standards, ranging from absolute certainty to constructive knowledge (‘should have known’). These different objects and standards are discussed in turn below. 2.1.3.3.1. Objects of knowledge The following scenario illustrates the different objects of a State’s knowledge and how they interact. Company D, domiciled in and operating from State A, manufactures ships. The company has a long-standing business relationship with State B and often sells ships to State B’s coastguard, which uses them for border control operations. It is well known that in the course of its border control operations, State B’s coastguard routinely violates the human rights of people attempting to leave State B’s jurisdiction and apply for asylum overseas. State B is under an arms embargo and third States, including State A, have certain obligations under arms control laws, but as the ships qualify as civilian goods, they are not covered by the embargo and States are not legally obliged to control their export. One of the ships sold and delivered by company D to State B has been linked to human rights violations committed by State B’s coastguard against migrants in distress at sea. Could State A be responsible for complicity in these violations under the law of State responsibility? For the knowledge requirement, it must be determined (i) whether State A had knowledge of the conduct constituting the act of assistance, namely, that its customs authorities allowed (or failed to control) the transfer of the ships; (ii) whether State A was aware of the circumstances making State B’s conduct wrongful, and/or was aware of the circumstances in which the ships were intended to be used by State B; and (iii) whether State A acted as it did with a view to facilitating the commission of the principal violation. These categories can be labelled as (i) knowledge of the act of assistance (the material element of complicity); (ii) knowledge of the principal violation (including the probability that it will occur, if it is not already happening); and (iii) knowledge of the nexus (i.e., that the act of assistance would materially facilitate the commission of the principal violation). The knowledge element required for complicity will only be fulfilled when all the (sub)requirements are met.266 Practically all scholarship on the notion of complicity in the law of State responsibility includes a discussion of the knowledge element in Article 16 ASR. Moynihan, Pacholska, and Milanovic in 265 ILC Commentary to Article 16 ASR, para. 3. The ‘third way’ is the opposability requirement, discussed in 2.1.3.4 below. 266 ILC Commentary to Article 16 ASR, para. 9: ‘Where the allegation is that the assistance of a State has facilitated human rights abuses by another State, the particular circumstances of each case must be carefully examined to determine whether the aiding State by its aid was aware of and intended to facilitate the commission of the internationally wrongful conduct.’ [Emphasis mine] See also Milanovic (2021) 1307. PROEF PS Joelle Trampert.job_08/28/2024_27A 54 particular have focused on this condition in detail, and all three have highlighted that knowledge has these different objects too.267 Milanovic’s remark that ‘the only thing consistent about the commentary to Article 16 is its inconsistency’ is no exaggeration, and the lack of clarity is exacerbated by the fact that that there is very little case law and State practice.268 The ILC’s Commentary to Article 16 ASR explains that the rule’s knowledge element requires that States are ‘aware of the circumstances making the conduct of the assisted State internationally wrongful’,269 which includes ‘[awareness] of the circumstances in which its aid or assistance is intended to be used by the other State.’270 These are actually two different things: as Milanovic has also pointed out, the ILC ‘confuses knowledge of the ongoing or future existence of the wrongful act with knowledge of how the assistance provided would be used. It is perfectly possible for the assisting State to have varying degrees of knowledge with regard to these two matters.’271 The ILC probably added the (sub)requirement of awareness of the intended ‘end-use’ in order to stress that the assisting State must have knowledge of a specific wrong,272 although depending on the circumstances, this can arguably be inferred from a general situation or pattern of serious human rights violations in the receiving State too.273 In addition, as actual knowledge of a violation which is yet to occur is not possible, knowledge of an intended (future) end-use will suffice. If interpreted narrowly, this (sub)requirement means that for complicity to arise, the assisting State needs to be aware of what the principal actor intends to do with the assistance. But this also implies that the assisting State needs to be aware of the principal actor’s intention to commit the principal violation in question.274 On the latter point, the ICJ held in the Bosnian Genocide case that: [T]he conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide cannot be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator. If that condition is not fulfilled, that is sufficient to exclude categorization as complicity.275 Several scholars have taken the ICJ’s assertion that the assisting State must have ‘at the least’ had knowledge of the principal perpetrators’ specific intent as an indication that the knowledge element in 267 See Moynihan (2018) 458-460, Pacholska (2020) 100-109, and Milanovic (2021), 1298-1300 and 1308-1309. 268 Milanovic (2021) 1307. 269 ILC Commentary to Article 16 ASR, para. 3 (see again the block quote above) and repeated in para. 4. 270 Id, para. 4. 271 Milanovic (2021) 1305. 272 Moynihan (2018) 458-459 and 469. 273 This will also depend on what the act of assistance consists of. If it is well known that a State is using chemical weapons against the civilian population, and another State exports such weapons to that State, this will not only amount to a breach of the Chemical Weapons Convention, but will arguably also entail the exporting State’s responsibility for complicity. 274 Milanovic (2021) 1306. 275 ICJ Bosnian Genocide para. 421. [Emphasis in original] PROEF PS Joelle Trampert.job_08/28/2024_27B 55 Article 16(a) ASR requires more than ‘mere’ knowledge, and something closer to intent.276 Leaving the debate on the standard(s) of knowledge aside for the moment, this part of the judgement should not be misinterpreted or taken out of context.277 The specific intent to destroy a group in whole or in part is an element of the crime of genocide. If a State has knowledge – which means practical certainty if the principal actor is yet to commit the crime278 – of the commission of the crime of genocide, this will automatically mean that it has knowledge of that specific intent too. Otherwise, there can simply be no knowledge of genocide. While the ICJ’s judgement is important for the interpretation of the rule reflected in Article 16 ASR, the paragraph quoted above must be read in light of the ICJ’s task to determine Serbia’s responsibility for complicity in the crime of genocide specifically. Generally, it is not necessary that the assisting State had knowledge of the principal actor’s intent to commit the violation in question in order for responsibility for complicity to arise. So far, this all relates to the assisting State’s knowledge of the principal violation; the object of knowledge under (ii) in the ship-scenario above. The debate in legal scholarship on the meaning of knowledge in Article 16 ASR mainly stems from the following paragraph in the Commentary to Article 16 ASR, which states that: [T]he aid or assistance must be given with a view to facilitating the commission of the wrongful act, and must actually do so. (…) A State is not responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State.279 This paragraph introduces another object of the assisting State’s knowledge, namely that the act of assistance would – or, rather, was meant to – facilitate the commission of the principal violation. This corresponds with the object of knowledge under (iii) in the ship-scenario above. Again, this part of the ILC’s Commentary is not particularly clear, and it could be interpreted in two different ways, either requiring that the assisting State intended to facilitate the commission of the wrongful act for the sake of helping the principal State, or that it intended to facilitate the commission of the wrongful act because it desired for the wrongful act as such to occur. This essentially boils down to the assisting State’s motive or motivation to act as it did. The latter interpretation would require that the assisting State shares the intent of the principal actor, which has not been accepted or demanded in practice.280 The 276 See Nolte and Aust (2009) 14, C Dominicé, ‘Attribution of Conduct to Multiple States and the Implication of a State in the Act of Another State’ in J Crawford, A Pellet, S Olleson, K Parlett (eds) The Law of International Responsibility (OUP 2010) 286, Aust (2011) 236, Crawford (2013) 407. 277 See also Jackson (2015) 160 and Lanovoy (2016) 231, who do not agree with aforementioned scholars. I agree with Jackson and Lanovoy. 278 Jackson (2015) 161, Moynihan (2018) 460, Milanovic (2021) 1288, 1298-1299, 1306, and 1310-1311. 279 ILC Commentary to Article 16 ASR, para. 5. [Emphasis mine] 280 The ICJ did also not specify this in the Bosnian Genocide case. See on this M Milanovic, ‘State Responsibility for Genocide: A Follow-Up’ (2007) 18(4) European Journal of International Law 669, 680-681, and Palchetti (2009) 388-389. PROEF PS Joelle Trampert.job_08/28/2024_28A 56 first interpretation is therefore the better one, although what this means in concrete terms, and what is meant by ‘intent’, is not immediately apparent from the ILC’s Commentary.281 In one of the final paragraphs, the Commentary then adds that: [A] State may incur responsibility if it (…) provides material aid to a State that uses the aid to commit human rights violations. (…) Where the allegation is that the assistance of a State has facilitated [those] human rights abuses (…), the particular circumstances of each case must be carefully examined to determine whether the aiding State by its aid was aware of and intended to facilitate the commission of the internationally wrongful conduct.282 This paragraph summarises the two main objects of the assisting State’s ‘mind’, namely that it must be aware of the commission of the principal violation (ii in the scenario above) and must intend to facilitate the commission of that violation (iii in the scenario above). The latter clearly implies knowledge that the assisting State’s conduct would contribute to the commission of the principal violation as well. In turn, knowledge of this nexus necessarily presupposes knowledge of the conduct which constitutes the act of assistance. The ILC has not expressly mentioned this, but it is implied. The Commentary to Article 16 ASR starts by pointing out that situations of complicity arise when a State ‘voluntarily assists or aids another State in carrying out conduct which violates the international obligations of the latter’.283 This could mean that the assisting State was not acting under any pressure or coercion,284 but it also indicates that the State must be aware of its own conduct constituting that act of assistance.285 This corresponds with the object of knowledge under (i) in the ship-scenario above. In most cases, knowledge under this heading will be so obvious that it is not worth mentioning, as the assisting State’s conduct will be the result of a deliberate decision.286 Situations where a State would inadvertently allow its territory to be used for secret detention sites, unintentionally fund and train another State’s coastguard, or unknowingly authorise export licences for arms or other controlled goods are nonsensical. In the ship-scenario, however, the answer to the question whether State A had knowledge of its own act of assistance will depend on its conduct and the specifics of the case. 2.1.3.3.2. Standards of knowledge 281 See again Palchetti (2009) 389, concluding that this part of the Commentary ‘simply means that the act of aiding and assisting must be a deliberate act.’ 282 ILC Commentary to Article 16 ASR, para. 9. [Emphasis mine] 283 Id, para. 1. 284 See ILC Commentary to Part One, Chapter IV of the ASR, para. 6: ‘The implication of the [assisting] State in that breach arises from the special circumstance of its willing assistance in (…) [the breach committed by] the acting State.’ In the unlikely event that a State is coerced in the sense of Article 18 ASR to assist in the commission of a wrongful act, the wrongfulness of the act of assistance may be precluded due to force majeure in the sense of Article 23 ASR. See ILC Commentary to Article 18 ASR, para. 6. 285 Cf Milanovic (2021) 1305. 286 See ILC Commentary to Article 16 ASR, paras 6, 7, and 10. PROEF PS Joelle Trampert.job_08/28/2024_28B 57 In order to understand the standard(s) of knowledge in relation to the respective objects, Milanovic has set out (the) different permutations in the context of intelligence sharing.287 Returning to the example of the ships above, the following variations are possible: under heading (ii), State A could know or be practically certain that the way in which State B’s coastguard generally carries out its border control operations is in contravention of IHRL; if it did not, perhaps it should have known about the (likelihood of future) principal violations; or, in the alternative, perhaps it must have known about how State B generally controls its borders. Under heading (iii), State A could know or be practically certain that the ships would be used for (and would thereby enable) the commission of serious human rights violations during State B’s border control operations; if it did not, perhaps it ought to have known about how the ships would be used; or, in the alternative, perhaps State A intended to facilitate State B’s violations of IHRL in the context of its border control operations and supplied the ships for that purpose. In light of the ILC’s Commentary and no practice to the contrary, Moynihan, Pacholska, and Milanovic have concluded that for complicity to arise, it must be proven that the assisting State had actual knowledge of the circumstances of the principal violation, which also means practical certainty due to the fact that States will simply never have absolute certainty about another State’s future conduct.288 In addition, the assisting State must have intended to facilitate the commission of the principal violation.289 Finally, under heading (i), logic dictates that State A must have had actual knowledge of its own conduct. Such knowledge is present if the assisting State’s conduct is the result of a general government policy or a specific executive decision.290 Especially the requirement that the assisting State intended, by its assistance, to facilitate the commission of the principal violation has stirred much debate. According to Moynihan and Milanovic, the standard of intent should also be considered to be met when the assisting State has actual knowledge (or rather, practical certainty) of how the assistance will be used, coupled with the State’s decision to provide assistance anyway, regardless of the outcome.291 Although the assisting State need not share the principal actor’s intent or desire for the principal violation to occur, this standard is still quite high.292 This makes sense: the rule as laid down in Article 16 ASR is meant to encapsulate all types of assistance in the commission of all internationally wrongful acts, from serious human rights violations and breaches of jus ad bellum to more ‘garden variety’ norms. Moreover, once fulfilled, the law of State 287 Milanovic (2021) 1308-1309. 288 See Moynihan (2018) 460, Pacholska (2020) 104, and Milanovic (2021) 1299 and 1306 (also using the term probabilistic foresight). See also Jackson (2015) 161, cf at 77-78 for ICL. 289 See Moynihan (2018) 466, Pacholska (2020) 105, and Milanovic (2021) 1321. 290 The literature has not expanded on this (sub)requirement, most likely because it is subsumed by the State’s knowledge of the nexus. 291 See Moynihan (2018) 467-468 and Milanovic (2021) 1321. See also Lowe (2002) 8-9, Crawford (2013) 408, and Jackson (2015) 160. Cf Pacholska (2020) 108: while the assisting State must ‘at least [have] actual knowledge that its assistance will facilitate the commission of the primary wrongful act, under international law as it stands today, it cannot be decisively concluded that the intent requirement is not a constituent element of responsibility for complicity.’ 292 See again Milanovic (2007) 681 and Milanovic (2021) 1278-1280 and 1310. See also Crawford (2013) 408, citing Lowe (2002) 6-9, and Pacholska (2020) 105. PROEF PS Joelle Trampert.job_08/28/2024_29A 58 responsibility assigns responsibility for complicity in the commission of the principal wrongful act. In this light, it is not surprising that the bar for complicity is higher than for responsibility resulting from a lack of due diligence. It must therefore be born in mind that while the general complicity rule prohibits States from doing by another what they cannot do by themselves, the law of State responsibility only assigns responsibility for complicity when States deliberately, instead of negligently or even accidentally, assist in the wrongful act of another. That being said, and especially in cases where the principal violation continues for a longer period of time, a State’s knowledge that its conduct is materially facilitating the commission of the principal violation(s) coupled with the decision to continue anyway will not be impossible to prove in practice. The requirement that the assisting State is aware of the circumstances of the principal violation is also not undisputed. Before looking at the interpretation of awareness or knowledge under this heading in more detail, two preliminary points are worth noting. First, knowledge is not something static; it can develop over time. Second, the world has changed significantly since 2001 – when the ILC finalised the ASR – and what seemed (un)reasonable then, may be assessed differently now. Given the fact that modern technologies provide a near-constant and almost instant access to information and communication, the position that a State providing assistance to another State need not assume the risk that the latter will use it for unlawful purposes might not always hold water. In other words, there are situations where the risk, or rather, the probability of the risk materialising, is so apparent and so real, that no-strings-attached assistance, especially assistance that is continuously provided over a longer period of time in the context of a volatile situation, would require States to at least consider some level of risk. It is against this backdrop that two different types or interpretations of the knowledge standard have been advanced by scholars and by courts, namely, ‘wilful blindness’ (or wilful ignorance) and ‘constructive knowledge’. Most authors agree that wilful blindness also meets the threshold of knowledge of the circumstances of the principal violation.293 Moynihan has defined wilful blindness as ‘a deliberate effort by the assisting state to avoid knowledge of illegality on the part of the state being assisted, in the face of credible evidence of present or future illegality.’294 While cautioning against hasty assumptions that because certain information was publicly available, the State in question must have turned a blind eye, Moynihan has concluded that when there is evidence ‘from credible and readily available sources, such as court judgements, reports from fact-finding commissions, or independent monitors on the ground, it is reasonable to maintain that a state cannot escape responsibility’ for complicity by deliberately 293 Nolte and Aust (2009) 15; Aust (2011) 218 with regard to IHRL; Jackson (2015) 162; Moynihan (2018) 461; E de Wet, ‘Complicity in Violations of Human Rights and Humanitarian Law by Incumbent Governments Through Direct Military Assistance on Request’ (2018) 67 International and Comparative Law Quarterly 287, 303-305; Pacholska (2020) 104; C Wiesener and A Kjeldgaard-Pedersen, ‘State Responsibility for the Misconduct of Partners in International Military Operation – General and Specific Rules of International Law’ (Djøf Forlag 2021) 43. 294 Moynihan (2018) 461. See also Lowe (2002) 10, Jackson (2015) 162, and Milanovic (2021) 1316-1320. PROEF PS Joelle Trampert.job_08/28/2024_29B 59 ignoring it.295 Wiesener and Kjeldgaard-Pedersen agree, highlighting a 2019 report of the Group of Eminent Experts on the situation in Yemen, which specifically mentioned that States supporting the Saudi-led coalition – including the UK through its arms transfers – may be responsible for complicity.296 However, Wiesener and Kjeldgaard-Pedersen have also noted that credible allegations of IHL violations ‘will not necessarily lead to the final conclusion that this pattern of violations will continue in the future with “virtual certainty”’.297 Indeed, a pattern of breaches will put States on notice of the risk, but that does not automatically equate with ‘practical certainty’ of the commission of the principal violation(s), especially if the State (re)assessed the risk or took precautionary measures. It is also worth considering that if the ICJ indicates provisional measures to preserve the rights claimed by an applicant State in the context of allegations of genocide by the respondent State and finds that these rights are ‘plausible’, third States will thereby be put on notice of the existence of a serious risk of genocide and any of the other punishable acts.298 If third States subsequently provide further support to the respondent State, knowledge can be presumed. There is also general consensus in scholarship that constructive knowledge does not meet the threshold of knowledge for the general complicity rule,299 with the exception of the scholars who have authored the ‘Guiding Principles on Shared Responsibility in International Law’.300 In the article presenting the Guiding Principles, which are the outcome of a large international research project on shared responsibility in international law, Nollkaemper and others have included the standard of constructive knowledge for the knowledge element of Principal 6, which is the Guiding Principles’ equivalent of Article 16 ASR.301 The authorities cited in support of this standard are a submission to the Inter-American Commission of Human Rights, the ICJ’s judgement in Corfu Channel, the CmAT’s decision in Agiza v Sweden, and the ECtHR’s extraordinary rendition case law.302 However, neither 295 Moynihan (2018) 462. See again Lowe and Jackson. See also Lanovoy (2016) 100-101. 296 See Wiesener and Kjeldgaard-Pedersen (2021) 43-44, citing the report of the Group of Eminent International and Regional Experts as submitted to the United Nations High Commissioner for Human Rights, UN Doc A/HRC/42/17, 9 August 2019, para. 92. See also the report of the Group of Eminent International and Regional Experts on Yemen, UN Doc A/HRC/45/6, 28 September 2020, para. 102. 297 Wiesener and Kjeldgaard-Pedersen (2021) 44. 298 Statement by South Africa welcoming the provisional measures ordered by the International Court of Justice against Israel, 26 January 2024, <https://dirco.gov.za/statement-by-south-africa-welcoming-the-provisional-measures-ordered-by-the-international-court-of-justice-against-israel/> and Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), Order of 26 January 2024, ICJ General List No 192, para. 54. 299 See Jackson (2015) 161-162 and Pacholska (2020) 104, noting that the Netherlands was the only country to propose this standard in their final comments on the ASR. See ILC Yearbook 2001, Vol. II(1), 33, 52. 300 A Nollkaemper et al (2020) 15. 301 Id, 40. 302 Id, 42-43. The Guiding Principles also add that constructive knowledge is ‘deemed relevant in relation to the obligation not to aid or assist in case of violations of international humanitarian law.’ This will be discussed in Chapter 4, Section 4.1. For a critique, see Wiesener and Kjeldgaard-Pedersen (2021) 42-43 and Milanovic (2021) 1318-1319. PROEF PS Joelle Trampert.job_08/28/2024_30A 60 Corfu Channel nor Agiza concern responsibility for complicity proper.303 The ECtHR does indeed employ a standard of constructive knowledge, but not in a way that is unique to complicity; it does so in cases concerning breaches of positive obligations and the principle of refoulement too. Moreover, the ECtHR did not use the general complicity rule, but has developed its own approach.304 The authors of the Guiding Principles also invoke the arguments for wilful blindness for their standard of constructive knowledge.305 Granted, the concepts are similar and wilful blindness can be understood in different ways,306 but as the authors refer to Moynihan’s definition, their merging of the concepts does not bolster their position.307 However, it should be noted here too that the project’s goal was not only to ‘substantiate’ the existing rules of international responsibility, but also to build and expand on them based on practice, doctrine, and jurisprudence, and the authors have made explicit in their article that they did ‘not distinguish between the codification of existing rules of international law and the progressive development’.308 Simply put, they did not purport to present the law ‘as it is’ exclusively. As for the difference between wilful blindness and constructive knowledge, the former indicates that the State must have known, the latter that the State should have known. ‘Wilful blindness’ means that the State deliberately avoided obtaining knowledge of the circumstances of the wrongful act. If a State negligently fails to inform itself of those circumstances, the conclusion might be that it ought to have known. Wilful blindness is thus closer to the presumption of knowledge in the non-assistance rule regarding serious breaches of jus cogens, whereas constructive knowledge is often used in IHRL and imposes a duty to enquire.309 This duty to enquire is not part of the general complicity rule.310 However, as Moynihan has also pointed out, the acceptance of wilful blindness for the knowledge element of the general complicity rule does indirectly move in the direction of a duty to enquire: ‘If a State has not made enquiries in the face of credible evidence of present or future illegality, it may be held to have turned a blind eye.’311 Relatedly, the fact that responsibility for complicity is assigned ex post facto might incentivise States to make enquiries about or follow up on the end-use of their assistance, in order to minimise the risk of responsibility at a later point in time.312 303 Agiza v Sweden, UN Doc CAT/C/34/D/233/2003 (CmAT, 20 May 2005) was decided on the basis of the principle of non-refoulement and is discussed in Chapter 3, Section 3.2. Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania), Judgement, ICJ Reports 1949, 4 (ICJ, 9 April 1949) concerns a positive obligation of due diligence, although see Corten and Klein (2012) and Aust (2011) 227, 244-245. See also at 295. 304 This will be discussed further in Chapter 5, Section 5.2. See also Milanovic (2021) 1345-1346. 305 Nollkaemper et al (2020) 42. For critique, see also Wiesener and Kjeldgaard-Pedersen (2021) 42-43, fn 79. 306 See on the different interpretations of wilful blindness Milanovic (2021) 1316-1320. 307 Nollkaemper et al (2020) 42, referring to Moynihan (2018) 461-462. Cf however Moynihan (2018) 463. 308 Nollkaemper et al (2020) 21. 309 Moynihan (2018) 462-463. 310 Id. See also Milanovic (2021) 1371. 311 Moynihan (2018) 463 and 471. 312 Id. PROEF PS Joelle Trampert.job_08/28/2024_30B 61 Finally, if the principal violation in question can be qualified as a serious breach of a jus cogens norm, the assisting State is presumed to be aware of the commission of that breach.313 This is discussed in Section 2.2. Before turning to the non-assistance rule in the aggravated responsibility regime, the following paragraph examines the last condition for complicity. 2.1.3.4. The opposability requirement The opposability requirement laid down in Article 16(b) ASR was introduced to ensure that the complicity rule did not stray too far into the realm of primary rules.314 It does so by limiting the scope of responsibility for complicity to cases where the assisting State and the assisted State (or, analogously, the assisted NSA) are bound by the same rule.315 For example, if State A and State B are party to a bilateral trade treaty, State C will not incur responsibility for complicity if it assists State A in breaching an obligation owed to State B, even if it does so knowingly or intentionally.316 While this limitation was arguably the biggest change to the original formulation of the rule, it is of little consequence in the context of this study.317 This is because all States (and NSAs) are bound by obligations of customary international law to refrain from engaging in conduct which constitutes international crimes (including the crime of genocide, crimes against humanity, and war crimes) and to refrain from committing the serious human rights violations which are central to this study (violations of the right to life, the right to be free from torture, and the right to liberty and security). For example, both the US and the Council of Europe member States that facilitated the extraordinary rendition programme were bound by the prohibition of torture and ill-treatment. The fact that the US is not a party to the ECHR is irrelevant, as it is the substance of the obligation in question that matters, not its source.318 In virtually all the scenarios that this study covers, the complicit State and the principal actor – be it a State or NSA – will be bound by rules of the same substance. As already noted in 2.1.2.5 above, NSAs also bear aforementioned obligations under international law. The ‘conceptual difficulty’319 with State-NSA complicity stems from the idea that as NSAs would not have international legal personality and therefore bear no international legal obligations, there would be no international wrong for the assisting State to be complicit in. This problem also exists in one specific inter-State constellation, namely if a retentionist State seeks mutual legal assistance (MLA) 313 See Article 41(2) ASR and ILC Commentary to Article 41 ASR, para. 11. See also Lanovoy (2016) 115-116. 314 See again ILC Yearbook 1999, Vol. II(1), 50-51, paras 183-188. See also Crawford (2013) 409-410. 315 ILC Commentary to Chapter IV, para. 8, and ILC Commentary to Article 16 ASR, para. 6, with reference to Article 34 VCLT. 316 Some authors have noted that the opposability requirement is problematic in light of the principle of good faith and the prohibition of abuse of rights, see e.g. Lanovoy (2014) 158-159. However, as the ASR are drafted to cover all international obligations, this limitation seems reasonable. This point was also raised in the ILC, see ILC Yearbook 1978, Vol. I, 237, para. 38. 317 See also ILC Yearbook 1999, Vol. II(2), 71, para. 262. 318 See also Crawford (2013) 410 and Milanovic (2021) 1275. 319 Jackson (2015) 127. PROEF PS Joelle Trampert.job_08/28/2024_31A 62 from an abolitionist State in order to prosecute an individual for crimes that carry the death penalty. While the argument can be made that the death penalty always amounts to a type of ‘cruel, inhuman or degrading treatment or punishment’,320 the view that the death penalty is not prohibited under international law in all circumstances still prevails.321 In that case, it would be harder to argue that an abolitionist and assisting State would be responsible for complicity in an execution carried out by a retentionist State, because that execution would not be internationally wrongful for the latter.322 This was at issue in the case of El Gizouli v Secretary of State for the Home Department.323 Early 2018, two members of an Islamic State terror cell, Mr El Sheikh and Mr Kotey, were captured in northern Syria. Both had perpetrated unspeakable crimes against, among others, UK and US citizens. Due to lack of evidence, the UK declined to prosecute the pair, but the US expressed its intention to. Already in 2015, the US had requested information from the UK under the MLA treaty, including on said terror cell. Two of the crimes that the US was investigating carried the death penalty, and the UK responded that it would only supply the information on the condition that the death penalty would not be imposed or carried out.324 This was in line with UK policy, and the UK reiterated this condition repeatedly. In 2018, however, the UK changed its tune, and informed the US that it would no longer seek assurances.325 It subsequently shared hundreds of witness statements. By 2019, Mr El Sheikh was in US custody, which made the possibility of a death penalty conviction as a result of this or future information more real. Arguing before the UK Supreme Court, Ms El Gizouli, El Sheik’s mother, raised two grounds of appeal: first, that it was unlawful under the common law to facilitate the death penalty in another State, and second, that it was unlawful under data protection law to transfer personal information to another State if that information would be used in a death penalty case. One Justice concluded that the State’s decision to provide MLA was unlawful under the common law and data protection law, and that the common law now included a principle of non- 320 By which I mean the death penalty as such, not just the anticipation thereof or the method used. This view is held by the regional human rights systems and international NGOs such as Amnesty International. See Al-Saadoon and Mufdhi v the United Kingdom, App No. 61498/08 (ECtHR, 2 March 2010) paras 115-125 and A.L. (X.W.) v Russia, App No. 44095/14 (ECtHR, 29 October 2015) para 64, General Comment No. 3 on Article 4 (right to life) of the African Charter on Human and Peoples’ Rights (ACmHPR, 12 December 2015) para 2, and Amnesty International, ‘Death Penalty’ <https://www.amnesty.org/en/what-we-do/death-penalty>. See also Office of the High Commissioner for Human Rights, ‘UN Experts Warn of Associated Torture and Cruel Punishment: World Day Against the Death Penalty’ 10 October 2022 <https://www.ohchr.org/en/press-releases/2022/10/un-experts-warn-associated-torture-and-cruel-punishment>. I share this view. 321 See Article 6 ICCPR and HRC General Comment No. 36 para 51, which does not categorically state that the death penalty is always at variance with Articles 7 and/or 6 ICCPR. Cf W Schabas, ‘International Law and the Abolition of the Death Penalty’ in Carol S Steiker and Jordan M Steiker (eds) Comparative Capital Punishment (Edward Elgar 2019). 322 See also B Malkani, ‘The Obligation to Refrain from Assisting the Use of the Death Penalty’ (2013) 62 International and Comparative Law Quarterly 523, 527. 323 See El Gizouli (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 10, 25 March 2020. 324 Id, para. 26. 325 Id, para. 60. PROEF PS Joelle Trampert.job_08/28/2024_31B 63 facilitation.326 The majority did not share this view, but the court did unanimously hold that the decision was unlawful under data protection law.327 The applicant thus won this specific case, but the judgement illustrates two issues: first, while it would be unlawful for the UK to transfer a person to the US if this exposed them to a real risk of being subjected to the death penalty, the same does not apply to the transfer of information, even if the State’s conduct exposed a known individual to that same risk. This has everything to do with the notion of jurisdiction in IHRL, which I discuss in Chapter 5.328 Second, although the idea that a State cannot do by another what it cannot do by itself is central to complicity,329 if there is no principal violation, there will be no complicity in that violation either.330 On the second point, however, I would argue that the death penalty does at least breach the prohibition of ill-treatment, if not the right to life, and that there is thus no ‘opposite’ issue under the ‘opposability’ requirement. 2.2. The non-assistance rule reflected in Article 41(2) ASR For obvious reasons, there is no explicit opposability requirement in the non-assistance rule in the ‘serious breach’ or aggravated responsibility regime, as all States are bound by norms of jus cogens. This Section discusses the threshold and status of the rule as laid down in Article 41(2) ASR (2.2.1), the rule’s nature and scope (2.2.2), and its constitutive elements (2.2.3). 2.2.1. The threshold and status of the non-assistance rule The aggravated responsibility regime is included in Part Two, Chapter III of the ASR, which comprises two provisions: Article 40. Application of this chapter 1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. 2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation. 326 Id, para. 142. 327 Id, paras 6-15. 328 See also A Tzanakopoulos, ‘The “ISIS Beatles” and “Non-Territorial” Application of the European Convention of Human Rights’ (Just Security, 17 December 2018) <https://www.justsecurity.org/61886/isis-beatles-non-territorial-application-european-convention-human-rights/>. 329 ILC Commentary to Article 16, para. 6. This paragraph concludes: ‘it is a necessary requirement for the responsibility of an assisting State that the [principal] conduct in question, if attributable to the assisting State, would have constituted a breach of its own international obligations.’ 330 See also J Trampert, ‘Death Penalty Assurances and the Data Protection Act – Fixing a Hole? The Case of Elgizouli v Secretary of State for the Home Department’ (Rethinking SLIC, 8 April 2020) <https://www.rethinkingslic.org/blog/state-responsibility/65-death-penalty-assurances-and-the-data-protection-act-fixing-a-hole-the-case-of-elgizouli-appellant-v-secretary-of-state-for-the-home-department-respondent?>. PROEF PS Joelle Trampert.job_08/28/2024_32A 64 Article 41. Particular consequences of a serious breach of an obligation under this chapter 1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40. 2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation. 3. This article is without prejudice to the other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under international law. Thus, in the event of a serious breach of a jus cogens norm, the law of State responsibility imposes on all third States a number of obligations, including an obligation not to render aid or assistance in maintaining the situation created by that breach.331 This paragraph examines the threshold notion in Article 40 ASR and interrogates the customary status of the non-assistance rule in Article 41(2) ASR. 2.2.1.1. The nature of the principal violation The serious breach of a jus cogens norm as a trigger or precondition for the three obligations laid down in Article 41 ASR is a remnant of the notion of international crimes of States in the ASR, which was eventually deleted on second reading.332 There are two conditions for these obligations to arise; one relating to the character of the obligation breached, and one relating to the nature of the breach itself.333 First, the obligation breached must have the status of jus cogens. Norms which are considered part of this category are the prohibitions of aggression, genocide, torture, crimes against humanity, racial discrimination and apartheid, slavery and slave trade, and the basic rules of IHL as well as the right of self-determination.334 Many of the principal violations central to this study relate to these norms: the extraordinary rendition programme involved the systematic use of torture, Libyan State organs’ mistreatment of migrants has reportedly amounted to crimes against humanity,335 and the Saudi-led 331 Jackson (2015) 173; C Tams, ‘Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?’ (2002) 13(5) European Journal of International Law 1161, 1162; and D Costelloe, Legal Consequences of Peremptory Norms in International Law (CUP 2017) 190. 332 See Jørgensen (2000) 46 and further; NHB Jørgensen, ‘The Obligation of Non-Assistance to the Responsible State’ in J Crawford, A Pellet, S Olleson, K Parlett (eds) The Law of International Responsibility (OUP 2010) 687 and further; Aust (2011) 320 and further; Crawford (2013) 390-394; Costelloe (2017) 184 and further; and HP Aust, ‘Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility, Observations in the Light of the Recent Work of the International Law Commission’ in D Tladi (ed.) Peremptory Norms of General International Law (Jus Cogens) – Disquisitions and Dispositions (Brill 2021) 230 and further. 333 See ILC Commentary to Article 40 ASR, para. 1. See also the ILC’s Draft Conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens), with Commentaries, included in Report of the ILC 2022, Chapter IV, 11, UN Doc A/77/10, Commentary to Conclusion 19, para. 1. See also Lanovoy (2016) 110. 334 See also ILC Commentary to Article 40 ASR, paras 4-5, and Conclusion 23 of the Draft Conclusions on jus cogens and Report of the ILC, UN Doc A/77/10, Chapter IV, Annex, 89. 335 See Report of the Independent Fact-Finding Mission on Libya, UN Doc A/HRC/52/83, 20 March 2023. PROEF PS Joelle Trampert.job_08/28/2024_32B 65 coalition’s targeting of civilians in Yemen has been classified as war crimes.336 Second, the breach of these norms must be ‘serious’, which is defined as a ‘gross or systematic failure’ to respect the norm.337 The ILC’s Commentary to Article 40 ASR explains that the ‘seriousness’ criterion ‘signifies that a certain order of magnitude of violation is necessary in order not to trivialize the breach and it is not intended to suggest that any violation of these obligations is not serious or is somehow excusable.’338 This additional threshold would also be in line with the practice of States.339 Crawford concluded that the criterion is to a certain extent illusory; in the case of jus cogens, ‘the mere fact of breach is ordinarily sufficient to warrant the label of ‘serious’.’340 For Pacholska, the additional threshold is justified, given the ‘tendency to see jus cogens everywhere.’341 But Lanovoy has criticised it, as it suggests that sporadic breaches of jus cogens are ‘less serious’ and therefore do not require third States to refrain from providing assistance.342 De Wet has also concluded that ‘[s]poradic incidents of torture in State prisons, for example, would not be covered’ by the rule in Article 41(2) ASR.343 Without wanting to suggest that a single act of torture is somehow not serious and would ever be defensible, the extra requirement of the breach being ‘serious’ makes sense in light of the presumption that third States are on notice of the commission of the serious breach. This is discussed further in 2.2.3 below. Factors which may determine ‘seriousness’ are, according to the Commentary, ‘the intent to violate the norm; the scope and number of individual violations; and the gravity of their consequences for the victims.’344 The requirement of ‘systematic’, which means that the violation was carried out in an organised or deliberate way, could exclude breaches that were not committed with a certain intention. This may be less decisive in practice as it first appears; as the Commentary also adds, some jus cogens norms already require proof of intent as an element.345 The requirement of ‘gross’ is broader, as it captures ‘flagrant’ violations that form ‘a direct and outright assault’ on the values at stake.346 In this sense, it might even be argued that a sporadic incident of torture could also fall within the scope of the aggravated responsibility regime. Moreover, the use of torture will often not be a single transgression by one individual, but part of a government policy, albeit tacitly.347 All things considered, it is unlikely 336 See Report of the UN High Commissioner for Human Rights containing the findings of the Group of Eminent International and Regional Experts, UN Doc A/HRC/39/43, 17 August 2018, Annex IV, para. 5; Report of the detailed findings of the Group of Eminent International and Regional Experts on Yemen, UN Doc A/HRC/42/CRP.1, 3 September 2019; and Report of the Group of Eminent International and Regional Experts on Yemen, UN Doc A/HRC/45/6, 28 September 2020. 337 See Article 40(2) ASR. These qualifiers are not cumulative: a breach will be ‘serious’ in nature when it is gross or systematic. The Commentary does add that serious breaches will often be both gross and systematic, see para. 8. 338 ILC Commentary to Article 40 ASR, para. 7. 339 Id. 340 Crawford (2013) 381. 341 Pacholska (2020) 122. 342 Lanovoy (2016) 112. 343 De Wet (2018) 307, with reference to Lanovoy (2016). 344 ILC Commentary to Article 40 ASR, para. 8. 345 Id. 346 Id. 347 See e.g. I Cobain, Cruel Brittania, a Secret History of Torture (Portobello 2012). PROEF PS Joelle Trampert.job_08/28/2024_33A 66 that the additional threshold of seriousness in Article 40 ASR unduly limits the scope of application of the non-assistance rule in Article 41(2) ASR, especially as States are free to make their own determination of the principal violation at hand.348 2.2.1.2. The non-assistance rule in international custom The ILC’s Commentary notes that the obligation to cooperate to bring to an end a serious breach of a jus cogens norm in Article 41(1) ASR was perhaps more a reflection of progressive development than a codification of international custom.349 While it has not made a comparable statement for the negative obligations in Article 41(2) ASR, the Commentary concludes that Article 41(3) ASR ‘reflects the conviction that the legal regime of serious breaches is itself in a state of development.’350 It is therefore surprising that the Commentary to the ILC’s Draft Conclusions on the identification and legal consequences of peremptory norms of general international law (jus cogens) – finalised in 2022 – states that the ILC had found that the obligations of non-recognition and non-assistance were part of international custom when the ASR were adopted in 2001.351 The Commentary to Article 41 ASR does state that the ‘existence of an obligation of non-recognition (…) already finds support in international practice and [ICJ] decisions’,352 but whether this was also the case for the obligation of non-assistance is unclear: the ILC cited a paragraph on obligations erga omnes353 from the ICJ’s advisory opinion on Namibia,354 and noted the ‘separate existence’ of the obligation of non-assistance with reference to UN 348 See also ILC Commentary to Article 40 ASR, para. 9, and Lanovoy (2016) 114. 349 ILC Commentary to Article 41 ASR, para. 3. 350 Id, para. 14. See also J Crawford, ‘International Crimes of States’ in J Crawford, A Pellet, S Olleson, K Parlett (eds) The Law of International Responsibility (OUP 2010) 410. Cf Conclusion 19(4) of the ILC’s Draft Conclusions on jus cogens, which contains a similar clause. 351 ILC Commentary to Conclusion 19(2) of the Draft Conclusions on jus cogens, para. 13, fn 258. See also para. 12, concluding that the negative duties of non-recognition and non-assistance are ‘less onerous’ than the positive obligation (of conduct) to cooperate to bring to an end. 352 ILC Commentary to Article 41 ASR, para. 6. 353 It is unclear why the ICJ spoke of obligations erga omnes instead of jus cogens. Pellet has suggested that this could have to do with the French judges’ refusal to recognise the notion of jus cogens. See A Pellet, ‘Conclusions’ in C Tomuschat and JM Thouvenin (eds) The Fundamental Rules of the International Legal Order – Jus Cogens and Obligations Erga Omnes (Brill 2005) 418. See also Aust (2011) 343-344, fn 127. For the discussion on the difference between jus cogens norms and obligations erga omnes, see e.g. G Abi-Saab, ‘The Uses of Article 19’ (1999) 10(2) European Journal of International Law 339, 348; E Wyler, ‘From ‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations under Peremptory Norms of General International Law’’ (2002) 13(5) European Journal of International Law, 1147, 1156-1157; J Wouters and S Verhoeven, ‘The Prohibition of Genocide as a Norm of Ius Cogens and Its Implications for the Enforcement of the Law of Genocide’ (2005) 5 International Criminal Law Review 401, 408-409; A Orakhelashvili, ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Opinion and Reaction’ (2006) 11(1) Journal of Conflict and Security Law 119, 132-134; and Y Tanaka, ‘The Legal Consequences of Obligations Erga Omnes in International Law’ (2021) 68(1) Netherlands International Law Review 1, 12-13. 354 ILC Commentary to Article 41 ASR, para. 11, with reference to Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16 (ICJ, 21 June 1971) para. 162. The Commentary to Article 41 ASR does not refer to para. 119 of this advisory opinion, but the ILC’s Commentary to Conclusion 19 of the Draft Conclusions on jus cogens does, see para. 14, fn 266. The Commentary to Conclusion 19 of the Draft Conclusions on jus cogens also refers to ICJ Wall para. 159. PROEF PS Joelle Trampert.job_08/28/2024_33B 67 Security Council resolutions prohibiting States from assisting in maintaining South Africa’s apartheid regime or Portuguese colonial rule.355 While there is no judicial confirmation of the customary status of the non-assistance rule as there is for the rule reflected in Article 16 ASR,356 some ICJ judgements and advisory opinions have referenced the rule reflected in Article 41(2) ASR.357 The Inter-American Court of Human Rights (IACtHR) has also cited Article 41 ASR (albeit in an advisory opinion),358 and a judge at the ECtHR has made reference to the obligation of non-assistance specifically (namely in a separate opinion).359 While the non-assistance rule is still more controversial than the general complicity rule,360 it has never been rejected either, and State practice and opinio juris will only have increased since 2001.361 The argument can also be made that even when States assist in maintaining a situation created by a serious breach of jus cogens, that does not negate the existence of the non-assistance rule in custom; conduct inconsistent with the rule amounts to a breach of that rule, and any appeals to justifications and exceptions will count as further evidence of its existence.362 The non-assistance rule in the aggravated responsibility regime may thus be considered part of customary international law. 355 ILC Commentary to Article 41 ASR, para. 12, with reference to UN Security Council Resolution S/RES/218(1965), 23 November 1965, territories under Portuguese administration, UN Security Council Resolution S/RES418(1977), 4 November 1977, arms embargo against South Africa, and UN Security Council Resolution S/RES/569(1985), 26 July 1985, sanctions against South Africa. 356 ICJ Bosnian Genocide para. 420. 357 See ICJ Wall para. 159; Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgement, ICJ Reports 2012, 99 (ICJ, 3 February 2012) para. 93 (referring to the ‘principle’ in Article 41 ASR); and ICJ Chagos para. 176 (noting that some participants had submitted that third States have an obligation not to recognise as lawful the situation resulting from the United Kingdom’s continued administration of the Chagos Archipelago and not to render assistance in maintaining it) and para. 182 (not providing a response to this point besides concluding that ‘all Member States must co-operate with the United Nations to complete the decolonization of Mauritius’). Cf the Separate Opinions of Judge Sebutinde, paras 45 and 50, and of Judge Robinson, para. 89. 358 Denunciation of the American Convention on Human Rights and the Charter of the Organization of American States and the Consequences for State Human Rights Obligations, Advisory Opinion OC-26/20, Series A No. 26 (IACtHR, 9 November 2020) paras. 103-104. 359 See Concurring Opinion of Judge Serghides, paras 15-19, and especially para. 18, to Güzelyurtlu and Others v Cyprus and Turkey [GC] App No. 36925/07 (ECtHR, 29 January 2019): ‘It is to be underlined that the illegal occupation of Northern Cyprus by Turkey, which is an internationally wrongful act of a continuing character under Draft Article 14 § 2, must cease, and Turkey has an undiminished responsibility to bring an immediate end to this act in order to protect the interests of the international community as a whole in the preservation of, and reliance on, the rule of law. As a result, third States are required not to aid or assist Turkey in maintaining this unlawful situation and entrenching or normalising the occupation of Cypriot territory. That is exactly the evil that the rule of non-recognition aims at protecting against.’ See also para. 24: ‘The Court should have emphasised, as I do now in my concurring opinion, that the Convention cannot require any State to do anything that would require it to breach a rule of customary international law, in the present case the rule of non-recognition.’ [Emphasis mine] Read together, Judge Serghides implied that the rule of non-assistance is also a rule of customary international law. 360 See M Arcari, ‘The Future of the Articles on State Responsibility: A Matter of Form or of Substance?’ (2022) Questions of International Law, Zoom-in 93, 3, 14. 361 See also Milanovic (2021) 1307. 362 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgement, ICJ Reports 1986, 14 (ICJ, 27 June 1986) para. 186. See also Pacholska (2020) 162 and Aust (2021) 252. PROEF PS Joelle Trampert.job_08/28/2024_34A 68 2.2.2. The nature and scope of the non-assistance rule Having established when the customary obligation of non-assistance is triggered, this paragraph compares it to the complicity rule and takes a closer look at its temporal scope of application. 2.2.2.1. The non-assistance rule compared to complicity To recall, the general complicity rule reflected in Article 16 ASR has certain features of a primary rule, but is still first and foremost a basis for responsibility for when States knowingly and significantly contribute to the commission of the principal violation by another which they are prohibited from committing themselves. The rule sets out the general conditions for responsibility to arise, and can therefore be qualified as a secondary rule. Compared to complicity, the non-assistance rule reflected in Article 41(2) ASR is closer to a fully-fledged primary rule,363 as the non-assistance rule imposes on all States an obligation of restraint in relation to the maintenance of the situation created by the principal violation, which is not necessarily inherent in the obligation of jus cogens which was breached by the principal actor. This is because the assistance is linked to the maintenance of the situation created by the serious breach, instead of the commission of the breach as such. Assistance in maintaining the unlawful situation constitutes an attributable breach of an international obligation, which entails the international responsibility of the assisting State.364 Aust has qualified the non-assistance rule in Article 41(2) ASR as a complicity rule.365 Jackson has noted that the general complicity rule and the rule in the aggravated responsibility regime are ‘mutually reinforcing’, but does not classify it as a complicity rule due to its temporal scope.366 Lanovoy has referred to Article 41(2) ASR as the ‘aggravated regime of complicity’367 and concluded that the non-assistance rule ‘in a way [imposes] a new substantive or primary norm, the violation of which can trigger an independent responsibility.’368 The non-assistance rule is indeed not a complicity rule proper or a complicity rule of lex specialis. The aggravated responsibility regime imposes on all States an obligation not to assist (and recognise) any situation which resulted from a serious breach of jus cogens. Naturally, this rule still depends on whether or not another State committed the serious breach – the principal violation – in the first place; otherwise, the aggravated responsibility regime will not kick in. However, the assisting State will not necessarily be responsible for complicity in the commission of that principal violation, as that will only be the case when the conditions for complicity are met. States can 363 See especially Lanovoy (2016) 115, Pacholska (2020) 124 (also citing Lanovoy), and Milanovic (2021) 1395 (albeit not explicitly). 364 See Articles 1 and 2 ASR. 365 Aust (2011) 338 and further, and at 421. 366 Jackson (2015) 174 and at 11. 367 Lanovoy (2016) 106. 368 Id, 115. PROEF PS Joelle Trampert.job_08/28/2024_34B 69 breach the obligation of non-assistance and be complicit in the principal violation concurrently,369 but this does not mean that the former is a complicity rule. What makes the non-assistance rule in the aggravated responsibility regime special, is that it comes into effect as a direct consequence of a specific wrongful act of another. In a way, this is similar to other international obligations, such as the prohibition of refoulement and certain positive obligations of prevention. For example, States are only prohibited from extraditing someone if there is a real risk that they will be tortured or ill-treated in the receiving State, and States are only obliged to suppress and take measures to prevent further acts of genocide once they were aware or should have been aware of the serious risk that genocide would be committed.370 But where these obligations operate ex ante, namely, when there is a risk of e.g. torture, other ill-treatment, or genocide, the non-assistance rule comes into effect ex post, i.e., after the initial commission of the serious breach, which has given rise to an unlawful situation.371 This raises three inter-related questions: what is meant by a ‘situation’; what conduct constitutes aid or assistance; and when will assistance ‘maintain’ the situation? The last two matters are discussed further in 2.2.3 below. The first question is dealt with next, as it relates to the rule’s scope of application. 2.2.2.2. Unlawful ‘situations’ and continuing serious breaches The ILC’s Commentary states that ‘[the non-assistance rule] extends beyond the commission of the serious breach itself to the maintenance of the situation created by that breach, and it applies whether or not the breach itself is a continuing one.’372 In other words, the rule does not apply in relation to the initial commission of the serious breach but relates to the maintenance of the situation resulting from it. The ILC has not defined an unlawful ‘situation’ or specified this temporal demarcation. The Commentary provides some examples: the ‘attempted acquisition of sovereignty over territory through the denial of the right of self-determination of peoples’,373 South Africa’s apartheid regime, and Portuguese colonial rule.374 Contemporary examples are Israel’s violation of the Palestinians people’s right to self-determination and its occupation of Palestinian territory,375 and the UK’s administration of the Chagos Archipelago, which the ICJ has declared ‘an unlawful act of a continuing character which 369 Aust (2011) 338, Lanovoy (2016) 115. 370 See ILC Commentary to Part One, Chapter IV of the ASR, para. 4, and ICJ Bosnian Genocide para. 431. 371 ILC Commentary to Article 41 ASR, para. 11. 372 Id. [Emphasis mine] 373 Id, para. 5. 374 ILC Commentary to Article 41 ASR, para. 12. 375 See the Request for an Advisory Opinion transmitted to the ICJ pursuant to UN General Assembly Resolution A/RES/77/247, 30 December 2022, Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, 17 January 2023. See also Human Rights Watch, ‘A Threshold Crossed – Israeli Authorities and the Crimes of Apartheid and Persecution’, 27 April 2021, and the report of the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, M Lynk, UN Doc A/HRC/49/87, 12 August 2022, also qualifying the situation as apartheid. PROEF PS Joelle Trampert.job_08/28/2024_35A 70 arose as a result of the separation of the Chagos Archipelago from Mauritius.’376 These breaches have created unlawful situations, and are also of a continuing character. While conceptually possible, it is actually hard to think of a practical example of a situation resulting from a serious breach that is not also a breach of a continuing character.377 The statement in the Commentary that the non-assistance rule applies ‘whether or not the breach itself is a continuing one’ deserves closer attention.378 The notion of a continuing breach is not easily defined.379 According to Article 14(2) ASR, a breach has a ‘continuing character’ when it ‘extends over the entire period during which the act continues and remains not in conformity with the international obligation.’380 The examples provided in the ILC’s Commentary are the maintenance of legislation that is incompatible with binding treaty obligations, the unlawful detention of a foreign State official or unlawful occupation of embassy premises, colonial domination by the use of force, or unlawful occupation or stationing of armed forces in the territory of another State without its consent.381 A breach is not of a continuing character simply because its effects or consequences extend in time.382 This means that the physical and mental harm caused by acts of torture, however lasting and devastating for the victim, does not make torture a continuing breach.383 Conversely, an enforced disappearance is a continuing breach as long as the person in question is unaccounted for.384 It therefore depends on the circumstances of the case whether the principal violation can be qualified as a continuing breach.385 Many of the scenarios central to this study qualify as serious breaches of jus cogens norms. But whether these breaches are of a continuing character, and whether they have resulted in an unlawful situation, is another matter. The continuity of the breach may be easier to establish than the existence of a ‘situation’. As Aust and Pacholska have also pointed out, the ILC’s interpretation of assistance ‘after the fact’, i.e., assistance in maintaining an unlawful situation is not very strict, precisely because of its inclusion of continuing breaches.386 The examples in the Commentary to Article 41 ASR mainly concern apartheid and occupation (unlawful situations) but the Security Council resolutions provided as references predominantly prohibit States from providing assistance in continuing serious breaches of 376 ICJ Chagos para. 177. According to Human Rights Watch, ‘the US aided and assisted the UK in preventing the return of the Chagossians, having done so with knowledge of the circumstances of this internationally wrongful act. At least since the adoption of the [ASR] in 2001, the US has also been responsible for having rendered aid and assistance to the UK in maintaining the forced displacement of the Chagossians.’ See Human Rights Watch, ‘“That’s When the Nightmare Started” – UK and US Forced Displacement of the Chagossians and Ongoing Colonial Crimes’, 15 February 2023, 88. 377 Aust (2011) 339, with reference to C Tomuschat, ‘International Crimes by States, an Endangered Species?’ in KC Wellens (ed.) International Law: Theory and Practice – Essays in Honour of Eric Suy (Nijhoff 1998) 259-260. 378 ILC Commentary to Article 41 ASR, para. 11. 379 Aust (2011) 338. See also at 358. 380 Article 14(2) ASR and ILC Commentary to Article 14 ASR, para. 3. See also para. 2 and Aust (2011) 342. 381 ILC Commentary to Article 14 ASR, para. 3. 382 Id, para. 6. 383 Id. 384 Id, para. 4. 385 Id. 386 Aust (2011) 339 and Pacholska (2020) 124, 132-133. PROEF PS Joelle Trampert.job_08/28/2024_35B 71 jus cogens norms. I also agree with Boivin that the non-assistance rule ‘contains a powerful basis for arguing that where the most egregious violations of international law are being perpetrated, States face an absolute prohibition against transferring weapons to those responsible for the violations.’387 If more emphasis is placed on the continuity of the breach than on the novelty of the situation, then the rule can be understood to prohibit States from assisting ongoing serious breaches too.388 2.2.3. The constitutive elements of the non-assistance rule As the previous Section did for complicity, this paragraph discusses the constitutive elements of the non-assistance rule. These are the conduct constituting the act of assistance, the connection between that conduct and the maintenance of the situation resulting from the serious breach of a jus cogens norm, and the knowledge requirement and its absence from the text of Article 41(2) ASR. 2.2.3.1. The material element: the act of assistance The ILC’s Commentary to Article 41(2) ASR states that ‘[a]s to the elements of “aid or assistance”, article 41 is to be read in connection with article 16.’389 Therefore, the broad range of conduct that can amount to assistance for the general complicity rule will fulfil the conduct requirement of the non-assistance rule too. Again, it is helpful to note what type of conduct is outside the rule’s scope. In addition to the obligation of non-assistance, Article 41(2) ASR contains another duty of abstention, namely, the obligation of non-recognition. The ILC’s Commentary explains that the obligation of non-assistance ‘may be seen as a logical extension of the duty of non-recognition’ but that it ‘has a separate scope of application insofar as actions are concerned which would not imply recognition of the situation created by serious breaches’.390 The difference between recognition and assistance can be illustrated by a resolution adopted in October 2022 at the emergency special session on the territorial integrity of Ukraine, where the UN General Assembly made reference to an obligation of non-recognition: 387 Boivin, ‘Complicity and Beyond: International Law and the Transfer of Small Arms and Light Weapons’ (2005) 87(859) International Review of the Red Cross 467, 470. [Emphasis mine] 388 Moreover, if an unlawful ‘situation’ is also understood as a ‘site’ of a continuing violation, then the aggravated responsibility regime might have more practical value. For example, Libya’s conduct in the Mediterranean Sea and especially the US’ conduct at Guantánamo Bay could be qualified as continuing serious breaches. If these locations are not seen as static ‘situations’ created by serious breaches, but rather as (geographical) ‘sites’ of continuing breaches, these situations would not only trigger the non-assistance rule, but also the other obligations laid down in Article 41 ASR. See on the principal violations mentioned here e.g. the Report of the Independent Fact-Finding Mission on Libya, UN Doc A/HRC/52/83, 20 March 2023, para. 40 and further, and especially para. 46, and the Report following the Technical Visit to the United States and Guantánamo Detention Facility by the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, 14 June 2023, para. 49, accessed via <https://www.ohchr.org/sites/default/files/documents/issues/terrorism/sr/2023-06-26-SR-terrorism-technical-visit-US-guantanamo-detention-facility.pdf>. 389 ILC Commentary to Article 41 ASR, para. 11. 390 Id, para. 12. PROEF PS Joelle Trampert.job_08/28/2024_36A 72 Calls upon all States (…) not to recognize any alteration by the Russian Federation of the status of any or all of the Donetsk, Kherson, Luhansk or Zaporizhzhia regions of Ukraine, and to refrain from any action or dealing that might be interpreted as recognizing any such altered status; (…).391 The recognition of the ‘altered status’ of these regions might also assist the Russian Federation in maintaining the unlawful situation, but it would not lead to responsibility for complicity under the general regime of State responsibility, whereas assistance that materially facilitates the continuation of the serious breach or the maintenance of the unlawful situation potentially could.392 Vice versa, transferring arms to a State that continues to commit serious violations of IHL that amount to war crimes or sharing intelligence with a State that continues to commit acts of torture will not necessarily result in recognition of these situations as lawful, but it will materially contribute to maintaining them. As an example of an act of assistance that would help maintain an unlawful situation, Aust has referred to the UK Joint Committee on Human Rights’ report entitled ‘Allegations of UK Complicity in Torture’, published after allegations of UK security services being complicit in the torture of detainees by other States overseas.393 Citing Article 16 ASR and Article 41 ASR, the members of the Joint Committee concluded that: [I]f the UK is demonstrated to have a general practice of passively receiving intelligence information which has or may have been obtained under torture, that practice is likely to be in breach of the UK’s international law obligation not to render aid or assistance to other States which are in serious breach of their obligation not to torture.394 The reference to the non-assistance rule in Article 41(2) ASR is clear,395 but it is less apparent how a general practice of passively receiving torture-tainted evidence assists in maintaining the situation created by a serious breach of the prohibition of torture, including a continuing breach.396 As the report 391 UN General Assembly Resolution A/RES/ES-11/4, 12 October 2022, Territorial integrity of Ukraine: defending the principles of the Charter of the United Nations, para. 4. See also ILC Commentary to Article 41 ASR, para. 5. 392 Aust (2011) 337. 393 Id, 339. 394 House of Lords and House of Commons Joint Committee on Human Rights, ‘Allegations of UK Complicity in Torture’, Twenty-third Report of Session 2008-09, HL Paper 152 HC 230, 4 August 2009, 18, para. 42. See also para. 43. 395 Id, fn 59. 396 For views that the receipt and use of torture-tainted evidence could entail a State’s responsibility for complicity in torture, see Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, JE Méndez, UN Doc A/HRC/25/60, 10 April 2014 paras 48-56; S Fulton, ‘Cooperating with the Enemy of Mankind: Can States Simply Turn a Blind Eye to Torture?’ (2015) 16(5) The International Journal of Human Rights 773, 775-778; and G Monina, ‘Article 15 Non-Admissibility of Evidence Obtained by Torture’ in M Nowak, M Birk, G Monina (eds) The United Nations Convention Against Torture and its Optional Protocol: A Commentary (OUP 2019, 2nd edition) 430. See also M Pollard, ‘The Use of PROEF PS Joelle Trampert.job_08/28/2024_36B 73 also notes, the practice encourages the principal State as it creates an incentive for that State to continue. But besides the fact that encouragement does not automatically qualify as assistance for the general complicity rule, it is not apparent that this is a scenario where Article 41(2) ASR would apply instead of Article 16 ASR. Moreover, passive receipt of information could be qualified as an omission, which then raises the question whether ‘after the fact’ assistance by omission is possible. As already discussed in Section 2.1, the material conduct for the general complicity rule can consist of acts and omissions. Whether conduct is active or passive is sometimes a question of framing, as it is in this scenario too. In any event, sharing information that assists in the maintenance of a black site or a torture programme is a better example. In conclusion, it does not materially deviate from what would qualify as assistance for the purpose of the general complicity rule. 2.2.3.2. The nexus element: assistance in ‘maintaining’ the unlawful situation The Commentary to Article 41(2) ASR does not mention any causality test or particular standard for the connection between the third State’s act of assistance and the maintenance of the situation resulting from the serious breach of a jus cogens norm by another State. But as the elements are to be read in connection with Article 16 ASR, it is likely that the same standard applies for the non-assistance rule in Article 41(2) ASR as for the general complicity rule.397 It is important to note, however, that while the standard of the causal link may be the same, the object of the State’s assistance is different: for the general complicity rule reflected in Article 16 ASR, the assistance must significantly contribute to the commission of the principal wrongful act (so before or during the commission of the principal violation, if it is a continuing breach), whereas for the non-assistance rule reflected in Article 41(2) ASR, the assistance needs to contribute to the maintenance of the situation resulting from a serious breach of a jus cogens norm (so during its continuation or after the fact).398 Lanovoy has argued that given the narrower temporal scope, the standard of the causal link for the rule in Article 41(2) ASR can be relaxed.399 Conversely, Aust and Pacholska have both concluded that loosening the standard and thereby lowering the threshold for responsibility would be problematic, especially as the non-assistance rule does not require any proof of knowledge.400 According to Boivin, writing about the transfer of arms as a form of unlawful assistance, ‘it is sufficient where peremptory norms are concerned for the aiding State to have contributed to maintaining the illegal situation’401 and that the non-assistance rule ‘covers acts of aid or assistance that do not materially contribute to the Information Obtained by Torture or Other Ill-treatment’ in MD Evans and J Modvig (eds) Research Handbook on Torture (Edward Elgar 2020) 328-330. 397 Aust (2011) 340. 398 Id. See also Boivin (2005) 473. 399 Lanovoy (2016) 116-117, with reference to Boivin (2005) 493. 400 Aust (2011) 340-341 (also with reference to Boivin (2005)) and Pacholska (2020) 125-126. 401 Boivin (2005) 473. PROEF PS Joelle Trampert.job_08/28/2024_37A 74 wrongful conduct, as long as these helped to maintain the illegal situation.’402 In my understanding, Boivin has not concluded that the standard of the causal link in the aggravated responsibility regime is or should be relaxed; rather, she has highlighted the difference in the object of the State’s assistance. In any case, I agree with Aust and Pacholska that the nexus requirement for the general complicity rule is already not particularly demanding, and as there is no indication in the Commentary, the doctrine, or in practice that a lower standard might apply for the non-assistance rule, there is no reason to assume this. The object of the nexus being the maintenance of the situation resulting from the serious breach of a jus cogens norm already means that the nexus requirement is less demanding for Article 41(2) ASR than it is for the general complicity rule. For example, if a State supplies arms to a State which is pursuing a policy of apartheid towards parts of the population on a territory under its control, it will not have to be proven – for the question of the responsibility of the State supplying the arms – that the State thereby significantly contributed to the creation of that situation, but that it (significantly) contributed to the maintenance of that situation, or the continuation of the violation. It will thus be necessary to establish that the arms contributed to the State’s ability to maintain its apartheid regime. Finally, not each and every form of cooperation with the principal State will be prohibited; the (un)lawfulness of the assistance will also depend on what the assistance is. As Jørgensen has put it, the obligation not to render assistance ‘does not require the complete isolation of the [principally] responsible State.’403 2.2.3.3. The knowledge element – and its absence Besides the differences in the respective rules’ material and temporal scope, the main distinction between the general complicity rule reflected in Article 16 ASR and the non-assistance rule reflected in Article 41(2) ASR is that the latter has no explicit knowledge requirement, at least not in the text. The ILC’s Commentary to Article 41 ASR states: In particular, the concept of aid or assistance in article 16 presupposes that the State has “knowledge of the circumstances of the internationally wrongful act”. There is no need to mention such a requirement in article 41, paragraph 2, as it is hardly conceivable that a State would not have notice of the commission of a serious breach by another State.404 Thus, while the assisting State’s knowledge of the circumstances of the principal wrongful act is a necessary precondition for responsibility for complicity, all States’ knowledge of the commission of a serious breach may be presumed for responsibility for a breach of the obligation of non-assistance as 402 Id, 493. 403 Jørgensen (2010) 691. 404 ILC Commentary to Article 41 ASR, para. 11. PROEF PS Joelle Trampert.job_08/28/2024_37B 75 laid down in the aggravated responsibility regime.405 This makes sense, practically and normatively. In practical terms, the fact that the obligation of non-assistance comes into play when a serious breach of a jus cogens norm has occurred or is ongoing means that it is highly unlikely that States would not be aware of such a breach. This also explains the ‘seriousness’ criterion: States are not necessarily expected to be aware of an incidental act of torture by one government official in another State, but this changes when the use of torture is systematic. If the presumption of knowledge was deemed appropriate over two decades ago, it definitely will be now; with modern technologies and means of communication bringing information to the desks or screens of civil servants almost instantly, States will surely be aware of gross or systematic violations of international law occurring in other States, and especially those that they have relations with. From a normative perspective, the importance of the norms at stake justifies what Lanovoy has described as a ‘reversal’ of the presumption of the absence of knowledge for the general complicity rule into a presumption of knowledge for the non-assistance rule reflected in Article 41(2) ASR.406 Lanovoy has argued that this presumption should apply for complicity too, provided that the principal violation in question qualifies as a serious breach of a jus cogens norm.407 Furthermore, this presumption of knowledge should not only apply in relation to the circumstances, i.e., the commission of the principal violation (the object of knowledge under heading (ii)), but also to the end-use of the assisting State’s assistance (the object under heading (iii)).408 As for the first point, namely that States must have known of the commission of a serious breach of a jus cogens norm, it is indeed illogical that this presumption of knowledge would only apply in the context of the non-assistance rule in the aggravated responsibility regime, but not for complicity. To recall, responsibility for complicity will arise when the assisting State had actual knowledge – which includes practical certainty – of the commission of the principal violation. If this violation qualifies as a serious breach of a jus cogens norm, then knowledge need not be proven, but may be presumed. This idea also coincides with the rationale to include wilful blindness for knowledge under heading (ii): in the face of credible evidence of wrongful acts, States cannot deliberately evade knowledge. It is also worth noting here that the ILC’s Commentary to Article 41 ASR states that it is inconceivable that States would not have notice of the commission of a serious breach by another State, which clearly matches the temporal scope of the general complicity rule. As for the second point, namely that States must have known of the connection between their conduct and the maintenance of an unlawful situation or continuing serious breach, the Commentary is silent on knowledge under heading (iii). This raises the question whether an assisting State could concede that it was aware of the serious breach, yet at the 405 See also ILC Commentary to draft Article 27 ASR (1996), para. 18. 406 See Lanovoy (2016) 115-116. See also Aust (2011) 341-342, Moynihan (2018) 470-471, and Pacholska (2020) 125-126. In fn 289, Pacholska has raised the question whether this presumption is rebuttable. 407 Lanovoy (2016) 115-116. 408 Id, 116, arguing that a State ‘cannot simply rely on the presumption of good faith to the effect that [the principal State] would not use the aid or assistance for the commission of serious breaches of peremptory norms of international law.’ PROEF PS Joelle Trampert.job_08/28/2024_38A 76 same time successfully defend its conduct by claiming that it was unaware that its actions were assisting in the maintenance of the situation resulting from that breach. Milanovic has concluded in the affirmative, explaining that a third State ‘may well be fully aware of the existence of a serious breach of jus cogens but unaware that its assistance would facilitate the maintenance of the situation.’409 Whether such a defence would be credible or not is highly case-specific, and will also depend on the nature of the assistance. As there are no indications to the contrary, the knowledge element for the nexus should probably be read in connection with the standard that applies for general complicity rule.410 This is, at least, practical certainty of how the assistance would be used plus the decision to proceed anyway. To conclude, the non-assistance rule presumes that the assisting State had actual knowledge of the commission of the principal violation, but it will need to be established that the assisting State was practically certain of how its assistance would be used, and yet decided to continue regardless. Depending on the principal violation, the nature of the assistance, and its duration, this knowledge might be inferred from the circumstances of the case. 2.3. Interim conclusion Article 16 ASR reflects a rule of customary international law. It implies a general prohibition of complicity for all States, but it is not a primary rule proper, as it presupposes a prohibition of complicity in the obligations which the assisting State is bound by. Complicity is a form of responsibility assigned for a degree of involvement in the wrongdoing of another actor, which is why it is included in the ASR. Complicity is derivative and not attributive in nature. This means that responsibility for complicity only arises if and when the principal violation occurs, and the complicit State is responsible for its complicity in the principal violation, not for the principal violation as such. In the simplest terms, responsibility for complicity will be assigned when the conditions for complicity have been fulfilled. The general complicity rule has four conditions: the conduct constituting the act of assistance, the nexus between that conduct and the principal violation, the knowledge requirement, and the opposability requirement. Given the focus of this study, the assisting State and the principal actor will both be bound by the underlying obligation or primary rule in question. As NSAs are also prohibited from committing the principal violations central to this study, the customary complicity rule can capture State-NSA complicity constellations too. Materially, assistance should be understood quite broadly; many forms of conduct are covered, as long as they facilitate the commission of the principal violation. Temporally, the assistance must be provided before or during the commission of the principal violation; assistance ex post facto is not within the general complicity rule’s scope. Despite the ICJ’s assertion in the Bosnian Genocide case, 409 Milanovic (2021) 1307. 410 ILC Commentary to Article 41 ASR, para. 11. PROEF PS Joelle Trampert.job_08/28/2024_38B 77 States can also be complicit by omission, although distinguishing acts from omissions is not particularly helpful and often boils down to how specific conduct is framed. For example, situations where States allow the use of their territory for a longer period of time or do not revoke or suspend an export licence can be characterised as either. To qualify as complicity, the assistance must ‘significantly contribute’ to the commission of the principal violation, which is highly case-specific. If the contribution is truly essential for the commission of the principal violation, it may amount to direct responsibility, and if it involves support that reaches the level of effective control, it may warrant attribution of conduct and therefore entail direct responsibility too. Conversely, an incidental or more remote contribution may not be sufficient for complicity at all. Given the lack of jurisprudence and practice on complicity, it is hard to say in concrete terms what degree of assistance is sufficiently significant. The assisting State’s knowledge can only be understood in relation to an object. States can have varying degrees of knowledge regarding three different things, namely (i) their own conduct, (ii) the principal violation, and (iii) the link between these two. In most cases, States will be aware of their own conduct. Assisting States must then have actual knowledge, i.e., practical certainty, of the commission of the principal violation. They need not share the principal actor’s intent, but must have intended to facilitate the principal violation, which also includes knowledge of how the assistance would be used followed by the decision to provide the assistance anyway. It is accepted in the literature that if States deliberately avoid reasonably credible and publicly available information concerning the principal violation, they may still incur responsibility for complicity. When a State has close ties with the recipient of its assistance, practical certainty – or wilful blindness – might be more readily assumed. The rationale for wilful blindness is similar to that of the presumption of knowledge for the non-assistance rule in the aggravated responsibility regime, under which all States are presumed to be on notice of the commission of a serious breach of a jus cogens norm. This presumption should also apply for complicity if the principal violation in question constitutes a serious breach of jus cogens. The non-assistance rule applies following a ‘serious’ breach of a jus cogens norm, and after such a breach has already been committed. But where the text of Article 41(2) ASR dictates that States are prohibited from assisting in the ‘maintenance’ of a ‘situation’ created by a serious breach, the rule also covers serious breaches of jus cogens which are of a continuing character. Understanding the rule to apply to continuing breaches is in line with practice and extends its scope of application. The constitutive elements of the non-assistance rule are similar to those of the general complicity rule, with the exception that the nexus relates to the maintenance of the situation or the continuation of the breach (instead of its initial commission), and that all States are presumed to have knowledge of the commission of the serious breach (meaning that no proof is needed). Finally, conduct in breach of the non-assistance rule does not automatically entail responsibility for complicity. Importantly, however, the non-assistance rule captures conduct which might not give rise to complicity proper, but which still contributes to continuing serious breaches of jus cogens norms. PROEF PS Joelle Trampert.job_08/28/2024_39A PROEF PS Joelle Trampert.job_08/28/2024_39B 79 CHAPTER 3. THE GENOCIDE CONVENTION, THE TORTURE CONVENTION, AND THE ILC’S DRAFT ARTICLES ON CRIMES AGAINST HUMANITY Introduction This Chapter examines three legal regimes which contain rules relevant to complicity in and other contributions to the commission of genocide, torture, and crimes against humanity. The Genocide Convention, adopted in 1948, was the first international treaty to codify the obligations of States for the purpose of protecting individuals, or rather, certain specified groups, from one of the core international crimes. This treaty does not create rights for individuals in the same way as the ECHR or the ICCPR do, but it is still used for the protection of human rights, as is apparent from the Gambia’s application instituting proceedings against Myanmar in 2019411 and South Africa’s application against Israel in 2023.412 The Genocide Convention also formed the basis of the legal dispute between Bosnia and Herzegovina and Serbia and Montenegro, in which Bosnia instituted proceedings in 1993 and the ICJ delivered its judgement in 2007. Some aspects of the Bosnian Genocide case have been discussed in Chapter 2 above, and the analysis continues here (3.1). The Torture Convention, adopted in 1984, complemented the existing legal framework on the absolute prohibition of torture and ill-treatment. Similar to the Genocide Convention, it is aimed at the prevention and punishment of torture and ill-treatment, and contains a dispute settlement clause that allows State parties to refer a dispute concerning the convention’s interpretation or application to the ICJ, as the Netherlands and Canada have done with respect to Syria in 2023.413 The monitoring body of the Torture Convention, the CmAT, can also receive and consider complaints from individuals who claim to be victims of a violation of a right in the Torture Convention by a State party, provided that State has recognised the CmAT’s competence.414 This Chapter focuses on the rules relevant to complicity and other contributions, and introduces a case heard by the CmAT involving extraterritorial assistance (3.2). There is currently no similar ‘prevention convention’ for crimes against humanity. Depending on the circumstances, torture, apartheid, and enforced disappearances may qualify as crimes against humanity, in which case they are covered by specific multilateral treaties.415 Crimes against humanity in general are also criminalised 411 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), Provisional Measures, ICJ Reports 2020, 3 (ICJ, 23 January 2020). 412 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), Provisional Measures, ICJ General List No. 192 (ICJ, 26 January 2024). 413 See Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v Syrian Arab Republic), Provisional Measures, ICJ General List No. 188 (ICJ, 16 November 2023). 414 See Article 22 CAT. 415 For apartheid, see the International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entered into force 18 July 1976) 1015 UNTS 243. For enforced disappearance, see the International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010) 2716 UNTS 3 (ICPPED). PROEF PS Joelle Trampert.job_08/28/2024_40A 80 under the Rome Statute.416 But unlike for the crime of genocide and war crimes, the obligations of States for the purpose of protecting individuals from this specific category of international crimes are yet to be comprehensively addressed. The groundwork for a treaty has been laid in the DACAH, adopted by the ILC in 2019. As the ILC drew from the two aforementioned treaties and these three instruments have been adopted at approximately 35-year intervals, the latter provide a valuable insight into the ‘state of play’ on certain matters, including on State complicity and other contributions (3.3). The main findings are summarised in an interim conclusion (3.4). 3.1. The Genocide Convention This Section describes how the ICJ identified a complicity rule in the Genocide Convention (3.1.1) and examines the ICJ’s approach to the question of State responsibility for involvement in genocide in the Bosnian Genocide case (3.1.2). It then discusses the constitutive elements of complicity in comparison to a failure to prevent (3.1.3) and highlights the responsibility gap in between a finding of complicity and a failure to prevent (3.1.4). 3.1.1. The implied complicity rule in the Genocide Convention In its 2007 judgement in the Bosnian Genocide case, the ICJ made a number of important findings on the Genocide Convention. First, it held that Article I, which lays down the general obligation to ‘undertake to prevent and to punish’ genocide, ‘is not merely hortatory or purposive’,417 but imposes ‘a direct obligation to prevent genocide’.418 Second, it found that although the Genocide Convention does not contain explicit negative obligations, these are still implied: under the Genocide Convention, States are prohibited from committing genocide419 as well as ‘the other acts enumerated in Article III’.420 Article III specifies the modes of liability which State parties must criminalise and prosecute, including complicity in genocide in paragraph (e). For the ICJ, as Article I qualifies genocide as a crime under international law, it would be ‘paradoxical’ if States were under an obligation to prevent the ‘commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State (…).’421 It added that this conclusion was ‘confirmed by one 416 Article 7 Rome Statute. 417 ICJ Bosnian Genocide para. 162. See also paras 163-164. 418 Id, para. 165. 419 Id, para. 166. 420 Id, para. 167. Cf ILC Yearbook 1978, Vol. II(1), 58, para. 71, fn 114, and the ILC’s Commentary to draft Article 27 ASR (1996), para. 13, fn 478, when this was still an open question. 421 ICJ Bosnian Genocide para. 166. PROEF PS Joelle Trampert.job_08/28/2024_40B 81 unusual feature of the wording of Article IX’,422 which Bosnia had also relied on in its submissions.423 This provision reads: Article IX Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. The unusual feature was the phrase ‘including [disputes] relating to the responsibility of a State for genocide or for any of the other acts enumerated in [A]rticle III’, without which Article IX could have been interpreted as an ordinary dispute settlement provision containing a compromissory clause. The ICJ thus concluded that it can be seized of matters concerning the responsibility of States for committing genocide as well as for any of the other acts listed in Article III, including complicity.424 Some scholars have criticised this finding: while States are prohibited from committing genocide under customary international law, this negative obligation is not included in the Genocide Convention, which solely covers State obligations regarding criminal matters.425 Serbia argued this in its submissions too.426 But the ICJ did not follow this purely textual interpretation of the treaty, and its competence to hear cases concerning allegations of State responsibility for committing genocide as well as for complicity, provided that it has jurisdiction to do so, is no longer up for debate. On complicity in particular, the ICJ declared in the Bosnian Genocide case that ‘complicity’ in Article III(e) of the Genocide Convention was conceptually similar to the general complicity rule: The Court sees no reason to make any distinction of substance between “complicity in genocide”, within the meaning of Article III, paragraph (e), of the Convention, and the “aid or assistance” of a State in the commission of a wrongful act by another State within the meaning of the aforementioned Article 16 (…). In other words, to ascertain whether the Respondent is responsible for “complicity in genocide” within the meaning of Article III, paragraph (e) (…) it must examine whether organs of the respondent State, or persons acting on its instructions or under its direction or effective control, furnished “aid or 422 Id, para. 168. 423 Id, para. 155. 424 Id, para. 169. See also A Seibert-Fohr, ‘State Responsibility for Genocide under the Genocide Convention’ in P Gaeta (ed.) The UN Genocide Convention: A Commentary (OUP 2009) 353-356. 425 See especially P Gaeta, ‘On What Conditions Can a State Be Held Responsible for Genocide?’ (2007) 18(4) European Journal of International Law 631, 633. See also A Cassese, ‘On the Use of Criminal Law Notions in Determining State Responsibility for Genocide’ (2007) 5 Journal of International Criminal Justice 875, 876-877, although Cassese was in favour of State responsibility for genocide under the Genocide Convention. For a critical discussion, see Jackson (2015) 204-206. 426 Gaeta (2007) 632, citing the Counter-Memorial of the former Federal Republic of Yugoslavia, 22 July 1997, at 308-313. PROEF PS Joelle Trampert.job_08/28/2024_41A 82 assistance” in the commission of the genocide in Srebrenica, in a sense not significantly different from that of those concepts in the general law of international responsibility.427 Although the ICJ held that the complicity rule in Article 16 ASR solely concerned inter-State assistance and was therefore not directly relevant for Serbia’s responsibility in connection with the crimes committed by the Republika Srpska and the VRS, it found that there was no reason to differentiate between the notion of ‘aid or assistance’ in Article 16 ASR and ‘complicity in genocide’ in Article III(e) of the Genocide Convention, and therefore drew on the conditions of the former.428 In light of the general complicity rule, States can incur responsibility for complicity in genocide irrespective of whether or not such a rule would have been ‘read into’ the Genocide Convention. But besides the ICJ’s confirmation that the State’s obligation not to commit genocide implies an obligation not to assist in the commission of genocide, this specific construction also meant that it was possible to consider Serbia’s responsibility for the other punishable acts listed in Article III.429 These other acts are regime-specific and not, unlike complicity, distinct bases for responsibility under international law.430 With respect to complicity, the findings in the Bosnian Genocide case relate to the general complicity rule as well as to the prohibition of complicity in genocide. 3.1.2. The ICJ’s approach to responsibility in the Bosnian Genocide case The ICJ approached the question of Serbia’s responsibility in relation to the Srebrenica genocide in four distinct steps: first, whether the acts of genocide could be attributed to Serbia; second and in the alternative, whether any of the other punishable acts, including complicity in genocide, had been committed by persons or organs whose conduct was attributable to Serbia; third and in the alternative, whether Serbia had fulfilled the obligation to prevent genocide in Article I of the Genocide Convention; and finally, whether Serbia had complied with the obligation to punish the perpetrators of genocide, also required by Article I.431 This procedural obligation to investigate, prosecute, and punish is the only duty in the Genocide Convention which is conditioned by territory.432 The substantive positive and 427 ICJ Bosnian Genocide para 420. See also para. 419. 428 See also Jackson (2015) 207 and 213 and Milanovic (2021) 1370. 429 These are conspiracy (paragraph (b)), direct and public incitement (paragraph (c)), and attempt (paragraph (d)) to commit genocide. 430 In other words, conspiracy, incitement, and attempt are not included in Part One, Chapter IV of the ASR, alongside direction and control (Article 17 ASR) and coercion (Article 18 ASR). 431 ICJ Bosnian Genocide paras 379-383. Cf Berkes (2021) 251, noting that ‘[i]n general international law, the ICJ and arbitral tribunals consistently apply this gradual approach to violations committed by [NSAs]: as a first step, they examine whether the conduct of the [NSA] is attributable to the respondent State and, if not, as a second step, they scrutinise the State’s responsibility for the breach of its obligation of due diligence.’ 432 Article VI of the Genocide Convention dictates that: ‘Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed (…)’, which means that States are only obliged to try suspects when the genocide was committed on their territory. See also ICJ Bosnian Genocide paras 184 and 442. Under customary international law, States may prosecute and punish genocide on the basis of universal jurisdiction, but they are not obliged to do so. PROEF PS Joelle Trampert.job_08/28/2024_41B 83 negative obligations – including the prohibition of complicity – are not, and apply whenever a State ‘may be acting or may be able to act in ways appropriate to meeting the obligations in question.’433 For the positive obligation to prevent genocide in particular, the ICJ noted that it hinges on the State’s capacity to influence the acts of individuals likely to commit or already committing genocide, which in turn depends on a number of factors, including ‘the geographical distance of the State concerned from the scene of the events’ and on the ties between the State and the perpetrators.434 Starting with the first question, the ICJ found that Serbia had provided ‘substantial support’, which included payment of salaries of some officers of the VRS.435 It also found that the political, military, and logistical ties between Serbia and the Republika Srpska and the VRS, which was operating on Bosnian territory under the command of General Mladić, ‘remained powerful’ at the time of the genocide, and that the Republika Srpska ‘could not have “conduct[ed] its crucial or most significant military and paramilitary activities” [without it].’436 There was evidence that Serbian authorities were aware of the intended attack on Srebrenica. But this did not suggest that Serbia had participated in the preparations,437 and none of this reached the level of control required for attribution of conduct. The ties did not meet the level of ‘strict control’ for the purpose of equating the Republika Srpska, the VRS, or any paramilitary militia with de facto organs of the Serbian State in the sense of Article 4 ASR, which, according to the ICJ, requires that the entity is ‘completely dependent’ on the supporting State.438 Serbia’s involvement also did not meet the threshold of ‘effective control’ for the purpose of attributing the conduct in question along the lines of Article 8 ASR.439 Serbia was therefore not responsible for committing the Srebrenica genocide.440 Turning to the second question, the ICJ was quickly able to dismiss conspiracy, incitement, and attempt. Focusing on complicity, the ICJ queried whether conduct which could be characterised as ‘complicity in genocide’ could be attributed to organs of the Serbian State.441 This is how complicity operates: the conduct constituting the act of assistance must be attributable to the State in question. When this is the case and the conditions for complicity are fulfilled, that State will be responsible for and to the extent of its complicity in the principal violation; here, the genocide. Serbia was ultimately not held responsible for complicity in the Srebrenica genocide as one (pre)condition was not met. The ICJ found that: [I]t is not established beyond any doubt (…) whether the authorities of the FRY supplied – and continued to supply – the VRS leaders who decided upon and carried out those acts of genocide with their aid and 433 ICJ Bosnian Genocide para. 183. See also Aust (2011) 361. 434 Id, para. 430. 435 Id, para. 388. 436 Id, para. 394. This is a direct quote from ICJ Nicaragua para. 111. 437 Id, para. 411. 438 Id, paras 391-395. 439 Id, para. 412. 440 Id, para. 413. 441 Id, para. 418. PROEF PS Joelle Trampert.job_08/28/2024_42A 84 assistance, at a time when those authorities were clearly aware that genocide was about to take place or was under way; in other words that not only were massacres about to be carried out or already under way, but that their perpetrators had the specific intent characterizing genocide, namely, the intent to destroy, in whole or in part, a human group, as such.442 On the one hand, as the specific intent to destroy is an element of the crime of genocide, knowledge of the crime implies knowledge of that intent. If there is no knowledge of the perpetrator’s specific intent, there can also be no knowledge of the commission of this particular crime. On the other hand, all States are presumed to have knowledge of the commission of a serious breach of a jus cogens norm, which genocide qualifies as too. This means that once genocide was underway, Serbia must have been aware of the commission of the genocide, and thereby also of the specific intent. But the ICJ did not consider the rationale for the presumption of knowledge as it applies in the aggravated responsibility regime, or any other notion or rule for that matter, and moved on to the question of Serbia’s responsibility for failing to prevent the genocide; an obligation conditioned by a standard of due diligence. The following paragraph takes a closer look at complicity as opposed to a failure to prevent, and compares the various constitutive elements. The last paragraph engages with the critique that by qualifying Serbia’s conduct as a failure to prevent, the judgement does not adequately reflect the fact that Serbia still contributed to the genocide. 3.1.3. The constitutive elements of complicity and failing to prevent compared Section 2.1, on the general complicity rule, already touched upon some of the constitutive elements of complicity as interpreted by the ICJ in the Bosnian Genocide case. This paragraph discusses the ICJ’s distinction between complicity in genocide and the failure to prevent it. 3.1.3.1. The material and nexus element The ICJ did not hold Serbia responsible for complicity in genocide because it was not convinced that the Serbian authorities had knowledge of the perpetrators’ specific intent at the relevant point in time. The ICJ did not determine whether or not the other conditions for complicity were fulfilled (namely, the nexus element and the opposability requirement), but it can be assumed that they were. With respect to the nexus element, the ICJ had already noted in its analysis on the point of attribution of conduct the strong ties between the Serbian State and the perpetrators of the genocide. In its analysis of the question of complicity, it also found that: 442 Id, para. 422. PROEF PS Joelle Trampert.job_08/28/2024_42B 85 Undoubtedly, the quite substantial aid of a political, military and financial nature provided by the FRY to the Republika Srpska and the VRS, beginning long before the tragic events of Srebrenica, continued during those events. There is thus little doubt that the atrocities in Srebrenica were committed, at least in part, with the resources which the perpetrators of those acts possessed as a result of the general policy of aid and assistance pursued towards them by the FRY. 443 As seen in Chapter 2, the act of assistance must have ‘significantly contributed’ to the commission of the principal violation to meet the standard required for complicity. There is no reason to assume that a different test would apply with respect to genocide, and as the aid was ‘quite substantial’ and the crimes ‘were committed, at least in part, with [that aid]’, this meets the threshold of a significant contribution.444 As for the duty to prevent genocide, which Serbia was found to have breached, the ICJ concluded that it did ‘not need to be proven that the State concerned definitely had the power to prevent the genocide; it is sufficient that it had the means to do so and that it manifestly refrained from using them.’445 Assessing causation in the context of an alleged breach of a positive obligation of conduct is always challenging.446 In this case, how could it be proven that the State’s inaction made a difference in the perpetrators’ ability to commit genocide? The ICJ did not dwell on this, judging Serbia’s conduct on its own merit: Serbia had the capacity to do something, and because it did nothing (or rather, did not modify its behaviour), its contribution to the occurrence of the genocide was taken as a given.447 As for the material element, the ICJ found that ‘“complicity” (…) includes the provision of means to enable or facilitate the commission of the crime’.448 It also held that complicity ‘always requires that some positive action has been taken to furnish aid or assistance to the perpetrators’, whereas a breach of the obligation to prevent ‘results from mere failure to adopt and implement suitable measures to prevent genocide from being committed.’449 The conclusion that complicity always results from commission instead of an omission has been criticised, and rightly so. On complicity in genocide in particular, Palchetti has argued that if a State ‘deliberately tolerates the presence on its territory of troops sent by another state for the commission of genocide’, there is no reason for this not to be characterised as complicity under the Genocide Convention.450 The same is true if a State deliberately tolerates NSAs perpetrating genocide on its territory despite knowledge of the crimes. While complicity 443 ICJ Bosnian Genocide para. 422. [Emphasis mine] 444 See also Palchetti (2009) 386 and Jackson (2015) 211. 445 ICJ Bosnian Genocide para. 438. See also para. 430: ‘it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result – averting the commission of genocide – which the efforts of only one State were insufficient to produce.’ [Emphasis mine] 446 See also Lanovoy (2022) 22 and further. 447 Id, 24. 448 ICJ Bosnian Genocide para. 419. 449 Id, para. 432. 450 Palchetti (2009) 385. PROEF PS Joelle Trampert.job_08/28/2024_43A 86 by omission is easier to conceptualise in a purely territorial context, a State could assist by omission in a cross-border context too, such as, for example, by failing to halt the provision of military goods or financial aid in light of a change of circumstances of which is has knowledge. As previously argued, whether certain conduct is an act or an omission often boils down to how it is qualified. For example, in the context of the Srebrenica genocide, the payment of salaries was a continuing act, or at least a series of acts. But failing to terminate payments, especially automatic ones, may equally be seen as an omission too. Likewise, the decision not to halt military assistance could constitute a positive act, but the failure to do so could also be qualified as an omission. What is more problematic, is when undisputedly active and overt conduct – which the conduct of Serbia regarding the perpetrators of the genocide was – is ultimately framed as a ‘mere failure to adopt and implement suitable measures’ to prevent genocide; the ICJ’s definition of a breach of the obligation to prevent.451 Therefore, whether a State’s conduct should be qualified as an act or omission is not the most important issue; what matters is whether that conduct, be it active or passive, materially facilitated the commission of the principal violation, and what information the State had at the relevant point in time. 3.1.3.2. The knowledge element The ICJ also distinguished between the prohibition of complicity and the obligation to prevent on the basis of the rules’ respective knowledge standards. As the ICJ applied the complicity rule as laid down in Article 16 ASR by analogy, the objects and standards discussed in Section 2.1 are relevant here too. These are the State’s (i) knowledge of the act of assistance; (ii) knowledge of the principal violation; and (iii) knowledge of the nexus. As noted above, the ICJ found that Serbia did not have knowledge under heading (ii), as it had not been established ‘beyond any doubt’ that the Serbian authorities were aware of the specific intent of the principal perpetrator.452 The ICJ added that: [I]t was not conclusively shown that the decision to eliminate physically the adult male population of the Muslim community from Srebrenica was brought to the attention of the Belgrade authorities when it was taken; (…) that decision was taken shortly before it was actually carried out, a process which took a very short time (essentially between 13 and 16 July 1995), despite the exceptionally high number of victims. It has therefore not been conclusively established that, at the crucial time, the FRY supplied aid to the perpetrators of the genocide in full awareness that the aid supplied would be used to commit genocide.453 Later on in the judgement, it reiterated that: 451 ICJ Bosnian Genocide para. 432. 452 Id, paras 421-422. 453 Id, para. 423. PROEF PS Joelle Trampert.job_08/28/2024_43B 87 [A]s also noted above, there cannot be a finding of complicity against a State unless at the least its organs were aware that genocide was about to be committed or was under way, and if the aid and assistance supplied, from the moment they became so aware onwards, to the perpetrators of the criminal acts or to those who were on the point of committing them, enabled or facilitated the commission of the acts. In other words, [the assisting State] must have given support in perpetrating the genocide with full knowledge of the facts.454 This also relates to Serbia’s knowledge under heading (iii), i.e., the State’s knowledge that its act of assistance would be used to commit, and would therefore contribute to, the principal violation. For the general complicity rule, the assisting State must have intended, by its assistance, to facilitate the commission of the principal violation. This intention is arguably also present when the assisting State has actual knowledge (i.e., practical certainty) of how the assistance will be used, coupled with the decision to provide or to continue providing the assistance anyway.455 The ICJ’s assessment of the knowledge element for complicity in genocide does not differ from the knowledge element for complicity in general. Shared genocidal intent is evidently not required, because if it is the ICJ would have pronounced on this, which it did not.456 But even though shared specific intent is not required, the knowledge element of the genocide-specific complicity rule is still quite demanding, especially in combination with the high standard of proof used by the ICJ, namely that Serbia’s knowledge was established ‘conclusively’ and ‘beyond any doubt’.457 The threshold for responsibility for failing to prevent genocide is significantly lower. In the Bosnian Genocide case, the ICJ found that ‘it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed.’458 First, the object of the State’s knowledge is not the commission of genocide as such, but the risk that it would occur. This makes sense; positive obligations of prevention are by definition meant to avert a future harm. There is no additional condition of establishing what the State knew or intended in terms of the connection between its own conduct and the principal violation, in the event that genocide is committed by a third party. Second, the standard of the State’s knowledge in relation to the risk is one of constructive knowledge. This is usual for positive obligations of conduct, which are often obligations of due diligence. Due diligence and constructive knowledge go hand in hand: a negligent State might not have known of the risk, but it should have known (and could have known, had it acted diligently). Commenting on the ICJ’s judgement in 2007, Cassese concluded that it seemed ‘illogical (…) to hold that the foresight of a risk of genocide is relevant to the obligation to prevent whereas it is 454 Id, para. 432. 455 Lowe (2002) 8-9, Crawford (2013) 408, Jackson (2015) 160, Moynihan (2018) 467-468, Pacholska (2020) 108, Milanovic (2021) 1321. 456 ICJ Bosnian Genocide para. 421. See also Milanovic (2007) 681, Palchetti (2009) 388-390, and Jackson (2015) 207-208. 457 See also Gattini (2007) 893-899. 458 ICJ Bosnian Genocide para. 432. PROEF PS Joelle Trampert.job_08/28/2024_44A 88 irrelevant to the crime of (or to state responsibility for) complicity in genocide.’459 He concluded that if a State is aware of the serious danger that acts of genocide would be committed by individuals or groups that it is supporting, ‘it must, at a minimum stop providing help and assistance.’460 First, while one can debate the merits of the standard of knowledge for the general complicity rule, the ICJ applied the same standard, not a stricter one.461 If we understand complicity as a basis for responsibility which reflects a degree of involvement in the principal wrong that is more blameworthy than failing to prevent it, a higher threshold makes sense. Second, the higher threshold of complicity does not mean that States are not obliged to halt their assistance; in light of the risk of genocide and their obligations of due diligence, they definitely are. But if they do not, that will more readily lead to responsibility for a breach of the obligation to prevent, than for complicity in the genocide itself. Lanovoy has also criticised the ICJ for not dwelling on the temporal element of the obligation to prevent and punish genocide.462 For the ICJ, there was no proof of knowledge of the decision to commit genocide until ‘after the takeover of Srebrenica, on about 12 or 13 July’.463 The genocide was committed ‘from about 13 July 1995’464 and ‘essentially between 13 and 16 July 1995.’465 Therefore, without questioning the ICJ’s finding that Serbia did not have knowledge of the specific genocidal intent before 13 July 1995, it can be concluded that Serbia did have – and must have had – this knowledge after 13 July 1995, including the time that the genocide was underway. As Lanovoy has noted, the ICJ ‘could have assessed at least part of Serbia’s subsequent conduct on the distinct ground of its obligation not to render any aid or assistance to the maintenance of the situation resulting from a serious breach of a peremptory norm (…) pursuant to Article 41(2) [ASR].’466 As seen in Section 2.2, the prohibition of assistance as laid down in the aggravated responsibility regime applies in relation to serious breaches of jus cogens norms which are of a continuing character too. The following paragraph from the Bosnian Genocide case has already been quoted in 3.1.3.1 above, but here, the emphasis is on a different part: Undoubtedly, the quite substantial aid of a political, military and financial nature provided by the FRY to the Republika Srpska and the VRS, beginning long before the tragic events of Srebrenica, continued 459 See Cassese (2007) 887, also quoted by Aust (2011) 361-362 and Lanovoy (2016) 213-214. 460 Cassese (2007) 887. See also Aust (2011) 362, noting that ‘there is some force in the argument that it is not entirely clear why the same degree of knowledge on the part of a third State would not render it responsible for complicity in genocide while it would at the same time be required to adopt measures in order to prevent the genocide.’ 461 Cf Lanovoy (2016) 212-214, emphasising the ICJ’s reference to ‘full knowledge of the facts’ in its complicity analysis and noting that this test is not required by the general complicity rule. 462 Id, 213. 463 ICJ Bosnian Genocide paras 295 and 423. 464 Id, para. 297. 465 Id, para. 423. The ICTY Trial Chamber concluded in the Krstić case that Bosnian Muslim men and boys were killed ‘in carefully orchestrated mass executions, commencing on 13 July 1995, in the region just north of Srebrenica. Prisoners not killed on 13 July 1995 were subsequently bussed to execution sites further north of Bratunac (…). The large-scale executions in the north took place between 14 and 17 July 1995.’ See Prosecutor v Radislav Krstić, Judgement, Case No. IT-98-33-T (ICTY, 2 August 2001) para. 67. 466 Lanovoy (2016) 213. PROEF PS Joelle Trampert.job_08/28/2024_44B 89 during those events. There is thus little doubt that the atrocities in Srebrenica were committed, at least in part, with the resources which the perpetrators of those acts possessed as a result of the general policy of aid and assistance pursued towards them by the FRY. 467 Had the genocide been qualified as a continuing serious breach (which an ongoing genocide, even for four days, arguably is) of a jus cogens norm, then the aggravated responsibility regime and specifically the non-assistance rule would have been triggered.468 Moreover, Serbia was not just found to have provided material assistance to the perpetrators ‘long before’ the genocide was committed; its support ‘continued during those events’.469 This raises the question why knowledge of the genocide was not presumed to exist once the genocide had started, which, following the ILC’s rationale for the non-assistance rule, must have been present. Thus, in my view, the problem is not so much that the ICJ did not employ the lower standard of constructive knowledge for its assessment of complicity, but that it did not further interrogate whether or not Serbia’s knowledge of the genocide, including the perpetrators’ specific genocidal intent, could be presumed once the crime of genocide was being perpetrated. The outcome of the case would likely have been different if the ICJ would have also applied this presumption of knowledge in relation to the continuation of the ‘tragic events of Srebrenica’. It is also important to note that despite the ICJ’s distinction between complicity and responsibility for failing to prevent on the point of the standard of knowledge, the ICJ ultimately concluded that Serbia must have known of the serious risk. Granted, the object of knowledge is different, but knowledge was presumed, not constructive: the ICJ held that Serbia ‘could hardly have been unaware of the serious risk (…) once the VRS forces had decided to occupy the Srebrenica enclave.’470 The enclave was occupied before the commission, continuation, and completion of the genocide. In the simplest terms, the Serbian authorities were on notice of the risk of genocide, and must also have been on notice of the commission of genocide, once it had already started. The ICJ’s conclusion that Serbia did not have the requisite knowledge at the relevant moment in time for a finding of responsibility for complicity, is therefore not watertight. But even if the conclusion that Serbia was not responsible for complicity in genocide is correct, it is harder to comprehend why the ICJ then held Serbia responsible 467 ICJ Bosnian Genocide para. 422. 468 See also Palchetti (2009) 392-393, noting that ‘the duty imposed on states by Article III(e) parallels the duty which is incumbent on states under Article 41(2) of the Articles on State Responsibility.’ 469 See Dissenting Opinion of Vice-President Al-Khasawneh, paras 51 and 62, on the issue of Serbia’s international responsibility ‘as a principal or as an accomplice’: the facts ‘clearly establish that Belgrade was, if not fully integrated in, then fully aware of, the decision-making processes regarding Srebrenica, while the Republika Srpska itself was excluded. Even after the fact, negotiations following the fall of Srebrenica and the genocide committed there were held simultaneously with General Mladić and President Milošević.’ See also Dissenting Opinion of Judge ad hoc Mahiou, para. 128, emphasising that Serbia’s assistance ‘continued even after the genocide in Srebrenica’, and Declaration of Judge Bennouna, stating that the ‘ongoing political, military and financial support existed before, during and after the massacre at Srebrenica’ at 363. 470 ICJ Bosnian Genocide para. 436. PROEF PS Joelle Trampert.job_08/28/2024_45A 90 for breaching the obligation to prevent, which ‘results from mere failure to adopt and implement suitable measures to prevent genocide from being committed’,471 and not for a higher degree of involvement. 3.1.4. Responsibility for involvement in between complicity and failing to prevent The ICJ did not hold Serbia responsible for complicity in genocide as there was insufficient proof that the Serbian authorities were aware of the decision to commit genocide including the specific intent. Instead, given ‘their undeniable influence and (…) the information (…) in their possession’, the ICJ held that the authorities should ‘have made the best efforts within their power to try and prevent the tragic events then taking shape, whose scale, though it could not have been foreseen with certainty, might at least have been surmised’. The ICJ concluded that Serbia had ‘manifestly refrained’ from taking any action to avert the atrocities despite having the means to do so, and was therefore responsible for breaching the obligation to prevent the Srebrenica genocide.472 For Aust, this is an example of how an obligation to prevent can operate as a ‘functionally similar rule’ or a ‘viable functional alternative’ to the notion of complicity.473 Corten and Klein have questioned the usefulness of complicity as a ground for responsibility altogether, due to its strict conditions and limited scope.474 Indeed, the standards of knowledge, as well as the potential procedural issue of determining the principal violation when the principal actor is not a party to the judicial proceedings, do indeed make it harder to establish responsibility for complicity than a breach of a positive obligation of due diligence.475 But many authors have criticised the outcome of the Bosnian Genocide case, precisely because the ICJ only found Serbia responsible for breaching its positive obligations. Cassese called the judgement a ‘consolation prize’ for absolving Serbia from responsibility for complicity in or even committing the genocide itself,476 and Trapp and Seibert-Fohr have both argued that by holding Serbia responsible for failing to prevent the Srebrenica genocide, the ICJ overlooked a degree of involvement that is ‘more than a failure to prevent, but less than complicity’477 or a category of conduct ‘below the level of complicity.’478 Looking at the facts of the case, Serbia’s conduct went well beyond a failure to take measures to prevent the genocide from being committed. The ICJ also recognised this, concluding that the ‘substantial aid (…) provided by the FRY to the Republika Srpska and the VRS, beginning long before the tragic events of Srebrenica, continued during those events’, and that the genocide was ‘committed, 471 Id, para. 432. 472 Id, para. 438. 473 Aust (2011) 401 and 403. See also at 404. 474 Corten and Klein (2012) 331-334. 475 This is due to the ‘Monetary Gold principle’. See again the ILC’s Commentary to Article 16 ASR, para. 11, Aust (2011) 296, and Jackson (2015) 171. 476 A Cassese, ‘A Judicial Massacre’ The Guardian, 27 February 2007. 477 Trapp (2015) 252. 478 Seibert-Fohr, ‘The ICJ Judgement in the Bosnian Genocide Case and Beyond: A Need to Reconceptualise’ in C Safferling and E Conze (eds) The Genocide Convention Sixty Years after its Adoption (Springer 2010) 245 and Seibert-Fohr (2017) 674. PROEF PS Joelle Trampert.job_08/28/2024_45B 91 at least in part, with the resources which the perpetrators (…) possessed as a result of the general policy of aid and assistance pursued towards them by the FRY.’479 I agree with Trapp that: There is something deeply unsatisfying in finding a State which is materially supporting NSAs, and ought to have known that there was a real danger that the NSAs would commit an international crime (and by logical extension, would use its support for the purposes of committing such crime), merely responsible for an internationally wrongful act characterised by an omission.480 Trapp has proposed a more detailed ‘spectrum of obligations’, a breach of which would result in responsibility befitting that breach. Using the crime of genocide as an example, this spectrum currently ranges from the obligation to prevent genocide from being committed, to the prohibition of complicity in genocide, to the prohibition of directly committing genocide. But there is a gap in between the obligation to prevent on the one hand and the prohibition of complicity on the other.481 Seibert-Fohr has highlighted this too, and attributed it to the interpretation of the obligation to prevent genocide as an obligation to intervene, i.e., to suppress the wrongful conduct of the principal actor, alone. According to Seibert-Fohr, Serbia ‘should have been found responsible not only for the failure to intervene but also for its contribution to the commission of genocide which was in violation of its obligation to prevent these crimes pursuant to Article I Genocide Convention.’482 This contribution, which breached the obligation to prevent, is a separate category of conduct that should give rise to a corresponding form of responsibility in between responsibility for failing to prevent, understood as a failure to intervene, and responsibility for complicity. Both Seibert-Fohr and Trapp focus on types of State conduct that would meet the material and the nexus requirements of complicity, but where the State’s knowledge is not sufficient for complicity. These are cases where the State ought to have known of the risk of the principal violation.483 While a primary rule of this kind has not been recognised under the Genocide Convention (and a secondary rule to this effect does not exist in the law of State responsibility), such rules do exist in other treaty regimes and under customary international law. One example is the principle of non-refoulement. Before looking the prohibition of refoulement in more detail in Section 3.2, it is worth briefly considering why this actually matters. This goes back to the principle of fair labelling.484 Just as a complicit State should not incur responsibility for the principal violation as such, a State that contributed significantly to the principal violation despite its knowledge of the risk of harm and its capacity to do something about it should not (only) incur responsibility for a failure to stop or prevent that harm from occurring. The 479 ICJ Bosnian Genocide para. 422. 480 Trapp (2015) 253. [Emphasis in original] 481 Id, 245-246. 482 Seibert-Fohr (2017) 698. See also at 703. 483 Trapp (2015) 252 and Seibert-Fohr (2017) 670. 484 See 2.1.2 above and Jackson (2015) 19-20, 22, and 143. PROEF PS Joelle Trampert.job_08/28/2024_46A 92 basis for responsibility is an expression of the State’s blameworthiness, and should therefore adequately reflect what the State did or did not do.485 The legal label used matters in terms of its societal impact, and can also make a difference for reparations owed to the victims. There is quite some gravity in saying that a State is complicit in international crime X or human rights violation Y, which explains why the threshold for complicity is relatively high. As van Sliedregt has suggested, the legal label used for State responsibility has bearing on the political and diplomatic consequences.486 This is also evident from the responses to the Bosnian Genocide case; recall e.g. Cassese’s words.487 It will be relevant for reparations too,488 even if this is not necessarily the primary point of concern. This last point can be demonstrated by the case of Mothers of Srebrenica v the Netherlands, which concerned the question of the Dutch State’s responsibility under Dutch civil (tort) law for the conduct of the Dutch battalion (Dutchbat) of UN peacekeepers during its deployment in the Srebrenica safe area in July 1995.489 The complaint was that Dutchbat had not done enough to protect civilians.490 The Court of Appeal had previously held that Dutchbat – and as Dutchbat’s conduct could be attributed to the Netherlands, the Dutch State491 – had facilitated the Bosnian Serbs in separating the male refugees from the other refugees by escorting the women, children, and elderly from the ‘mini safe area’ outside the compound to the busses that would evacuate them.492 As Dutchbat knew or ought to have known that there was a real risk that the men would be ill-treated or killed, it should have stopped cooperating with the evacuation, and the decision to continue was therefore unlawful.493 But the Supreme Court overturned this holding, concluding that as it was clear to Dutchbat that ceasing its cooperation would not influence (i.e., minimise) the risk for the men outside the compound and in light of the war situation, 485 See also Milanovic (2021) 1370. 486 Van Sliedregt, ‘New Insights and Structural Clarity: Miles Jackson’s “Complicity in International Law”’ (EJIL:Talk!, 12 April 2017) <https://www.ejiltalk.org/new-insights-and-structural-clarity-miles-jacksons-complicity-in-international-law/>. See also Lanovoy (2016) 323-324, stating that ‘the qualification of (...) certain conduct as complicity arguably carries more weight both symbolically (in terms of its deterrent effect (…)) and practically (as reparation is likely to be more significant in form and content as compared to a breach of a due diligence obligation).’ Similarly, see Ollino (2022a) 217-218, recognising that ‘complicity carries greater ‘social disvalue’ than responsibility for the violation of a due diligence obligation.’ 487 M Jackson, ‘“Complicity in International Law”: Author’s Response’ (EJIL:Talk!, 14 April 2017) <https://www.ejiltalk.org/complicity-in-international-law-authors-response/>. 488 See ICJ Bosnian Genocide para. 463 and paras 5 and 9 of the judgement’s operative clause. See also Seibert-Fohr (2017) 675. 489 See Stichting Mothers of Srebrenica and Others v the Netherlands, Court of Appeal of The Hague, ECLI:NL:GHDHA:2017:1761, 27 June 2017 (see for an English, non-official translation ECLI:NL:GHDHA:2017:3376) and The Netherlands v Stichting Mothers of Srebrenica and Others, Supreme Court of the Netherlands, ECLI:NL:HR:2019:1223, 19 July 2019 (see for an English, non-official translation ECLI:NL:HR:2019:1284). 490 The Court of Appeal and the Supreme Court both ruled that the Genocide Convention, including the obligation to prevent genocide as reflected in Article I, did not have direct effect. The claimants could therefore not invoke it. Instead, the case was dealt with on the basis of the duty of care as laid down in Article 6:162 of the Dutch Civil Code. 491 See for an overview of the case and on the issue of attribution in particular N Nedeski and B Boutin, ‘The Continuing Saga of State Responsibility for the Conduct of Peacekeeping Forces: Recent Practice of Dutch and Belgian Courts’ (2021) Netherlands Yearbook of International Law 2019, 309. 492 Court of Appeal Mothers of Srebrenica paras 61.1-61.8. 493 Id, paras 61.3, 61.5, and 61.8. PROEF PS Joelle Trampert.job_08/28/2024_46B 93 the options available to Dutchbat, and the interests (i.e., safety) of the women, children, and elderly, the decision to continue was not unlawful.494 Importantly, the Court of Appeal had not awarded any damages for the harm resulting from Dutchbat’s wrongful conduct as there was no proof that the required causal link had been met,495 but it had made a declaration of wrongfulness.496 Notwithstanding the unimaginable difficulties that Dutchbat must have faced, I share Dannenbaum’s conclusion that the reversal of the Court of Appeal’s judgement on this point is ‘a breathtakingly consequentialist approach to the direct participation of public officials in a process of genocidal sorting.’497 All this is to say that even though the judicial holding made no difference for reparations, a declaration of what a State is responsible for, matters. Returning to the gap identified in between responsibility for complicity and failing to prevent, if such an intermediary category of wrongful contributions is accepted in the context of State obligations in relation to genocide, what would responsibility for such a contribution look like? For Seibert-Fohr, responsibility for complicity would remain a separate category and the rules for attribution of conduct would remain untouched, thereby keeping the structure of the law of State responsibility intact.498 Instead, State conduct which breaches specific obligations or primary rules proscribing (lesser) forms of assistance would not require any complicity or attribution analysis, but could be captured by the specific rule in question, a breach of which would result in the State’s independent responsibility which reflects what it factually did. Applying this to the Srebrenica genocide, Serbia could have discontinued its assistance to the VRS in light of the serious risk of which it must have been aware.499 Serbia’s continued support would clearly have been in breach of the proposed duty not to indirectly participate or assist as implied in Article I of the Genocide Convention. Seibert-Fohr has argued that this duty could best be conditioned by a standard of due diligence, and that a breach would result in risk-based, ex-ante responsibility, similar to responsibility that States incur for transferring a person to another State despite the foreseeable risk of serious harm.500 Due diligence is indeed a flexible standard already in use in virtually all fields of international law.501 Whether a State (sufficiently) refrained from providing (further) assistance boils down to whether it acted diligently considering the available information about the risk and the available means to prevent it from materialising.502 This will be highly case-specific, but in the Bosnian Genocide case, one can confidently conclude that continuing to provide assistance 494 Supreme Court Mothers of Srebrenica para. 4.5.4. 495 Court of Appeal Mothers of Srebrenica para. 64.2. 496 Id, para. 65. 497 T Dannenbaum, ‘A Disappointing End of the Road for the Mothers of Srebrenica Litigation in the Netherlands’ (EJIL:Talk!, 23 July 2019) <https://www.ejiltalk.org/a-disappointing-end-of-the-road-for-the-mothers-of-srebrenica-litigation-in-the-netherlands/>. 498 See Seibert-Fohr (2017) 680. 499 Id, 698. 500 Id, 671, 706-707. 501 See the recent works of M Monnheimer, Due Diligence Obligations in International Human Rights Law (CUP 2021), Ollino (2022a), and H Krieger, A Peters, and L Kreuzer, Due Diligence in the International Legal Order (OUP 2020). 502 See also Seibert-Fohr (2017) 695. PROEF PS Joelle Trampert.job_08/28/2024_47A 94 despite clear indications of the serious risk of genocide and without taking any mitigating measures is certainly not that. As for Seibert-Fohr’s proposed type of responsibility, or rather, the element of temporality, responsibility would be assigned when a State negligently (i.e., not diligently) contributes to the risk of the principal violation materialising. The best example of such risk-based, ex ante type of responsibility is the prohibition of refoulement: States incur responsibility for exposing someone to a risk, prior to and regardless of whether the principal violation (i.e., the act of torture or ill-treatment) ultimately occurs. As such, the breach is the exposure to the risk, not the contribution to the torture. A risk-based approach makes sense for the prohibition of refoulement, as the rationale is to prevent a person from being removed from the State’s jurisdiction and control and being subjected to torture or ill-treatment in another State. Responsibility for transferring a person is independent from the occurrence of the principal violation, and can therefore be established on its own terms and at an earlier point in time. Conversely, neither responsibility for complicity nor for failing to prevent, if understood as a failure to intervene, are risk-based, ex ante forms of responsibility. At least with respect to genocide, States can only incur responsibility for failing to prevent it if the genocide in question actually occurred.503 While it makes absolute sense for the proposed obligation of non-assistance to operate ex ante (as does the prohibition of complicity implicit in the Genocide Convention), it is more logical if responsibility for a breach is assigned ex post. Applying this to the ICJ’s judgement in the Bosnian Genocide case, the ICJ could have made virtually the same analysis as under the heading of the obligation to prevent, but instead of concluding that Serbia was responsible for failing to prevent the genocide despite being aware of the risk and having the capacity to act, it could have found that Serbia had assisted the genocide. 3.2. The Torture Convention This Section enquires whether a complicity rule can be identified in the Torture Convention (3.2.1) and examines a decision of the CmAT regarding allegations of extraterritorial complicity (3.2.2). It then introduces the principle of non-refoulement (3.2.3) and compares complicity to responsibility for breaching the prohibition of refoulement (3.2.4). Finally, it discusses the level of State involvement required if the principal actor is an NSA (3.2.5). 3.2.1. An implied complicity rule in the Torture Convention The Torture Convention forms an integral part of the international legal framework on the absolute prohibition of torture.504 The prohibition of torture has been codified in the regional human rights 503 ICJ Bosnian Genocide para. 431. 504 See also J Trampert, ‘The Export of Goods Used for Torture and the Applicability of Article 3 ECHR’ (2023) 4(3) European Convention on Human Rights Law Review 267, 279. PROEF PS Joelle Trampert.job_08/28/2024_47B 95 treaties of the Council of Europe,505 the EU,506 the African Union,507 and the Americas,508 and it is included in the ICCPR.509 It is also a norm of jus cogens,510 which means that if acts of torture are committed in a ‘gross or systematic’ way, the aggravated responsibility regime imposes on all third States the obligations as laid down in Article 41 ASR, including the duty to refrain from assisting in any continuing violations. Similar to the Genocide Convention, the Torture Convention lays down obligations to prevent and punish torture. It does not include an express prohibition of torture, because it was already covered in aforementioned treaties. Nonetheless, this prohibition is implied.511 This gives rise to the question how the prohibition of complicity in torture is implied in the Torture Convention, as has been established by the ICJ in relation to genocide under the Genocide Convention. A first possible basis for the prohibition of complicity can be found in the first provision: Article 1 1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering (…) is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (…) 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. It follows from Article 1(1) CAT that for an act to qualify as torture and thus fall within the scope of the Torture Convention, a certain level of State involvement is required. At a minimum, a person whose conduct can be attributed to the State in accordance with the law of State responsibility must have consented to or acquiesced in the act(s). This is the same for other acts of ill-treatment.512 It might therefore be assumed that the notion(s) of consent and acquiescence in the Torture Convention could also be qualified as such, but as Article 1(1) CAT provides a definition and not a substantive obligation, this provision alone is not a sufficient basis for a prohibition of complicity.513 505 Article 3 ECHR. 506 Article 4 CFR. 507 Article 5 ACHPR. 508 Article 5 ACHR. 509 Article 7 ICCPR. 510 See e.g. Prosecutor v Anto Furundžija, Judgement, Case No. IT-95-17/1-T (ICTY, 10 December 1998) para. 144; Al-Adsani v the United Kingdom [GC] App No. 35763/97 (ECtHR, 21 November 2001) para. 61; and ILC Commentary to Article 40 ASR, para. 5. 511 See also G Zach, ‘Article 1 Definition of Torture’ in M Nowak, M Birk, G Monina (eds) The United Nations Convention Against Torture and its Optional Protocol: A Commentary (OUP 2019, 2nd edition) 63. 512 Article 16(1) CAT. 513 Cf Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, JE Méndez, UN Doc A/HRC/25/60, 10 April 2014, para. 48, suggesting that ‘acquiescence, as PROEF PS Joelle Trampert.job_08/28/2024_48A 96 Another basis for such a rule could be Article 2(1) CAT, which stipulates that State parties ‘shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.’ The CmAT specified in a General Comment that the measures taken by States to fulfil this obligation must ‘prevent public authorities and other persons acting in an official capacity from directly committing, instigating, inciting, encouraging, acquiescing in or otherwise participating or being complicit in acts of torture as defined in the Convention.’514 In other words, State parties are required to take measures to ensure that individuals whose conduct can be attributed to them do not commit or otherwise participate in acts of torture (which is fairly obvious). The Committee added that: [W]here State authorities or others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts. Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non-State actors to commit acts impermissible under the Convention with impunity, the State’s indifference or inaction provides a form of encouragement and/or de facto permission.515 In light of Articles 1 and 16 CAT, mistreatment by NSAs would strictly speaking not be covered by the Torture Convention, even if it rises to the severity level of torture or other ill-treatment. But the Committee seems to confirm here that if such acts are committed by an NSA and the State failed to prevent, investigate, prosecute, and punish them, that failure itself can amount to State consent or acquiescence, which brings the conduct at issue within the Torture Convention’s scope. The State can then incur responsibility for failing to fulfil its positive substantive duties or procedural obligations, as well as for its own act of consenting or acquiescing.516 If State officials are considered ‘complicit or otherwise responsible’, it would be logical that the State incurs responsibility in a way that reflects this. One caveat here is that unlike the obligation to prevent genocide, the obligation to prevent torture in Article 2(1) CAT is conditioned by the State’s jurisdiction. This common feature of human rights contained in article 1 of the Convention, on the part of State officials is sufficient for the conduct of those officials to be attributed to the State and to lead to State responsibility for torture.’ 514 General Comment No. 2 on the implementation of Article 2 by States parties, UN Doc CAT/C/GC/2 (CmAT, 24 January 2008) para. 17. 515 Id, para. 18. 516 See also K Fortin, The Accountability of Armed Groups under Human Rights Law (OUP 2017) 223-224. PROEF PS Joelle Trampert.job_08/28/2024_48B 97 treaties will be discussed further in Chapter 5.517 It suffices to say here that if a prohibition of complicity is based on Article 2(1) CAT, it would likely be limited by the State’s jurisdiction. A final way to construct a complicity rule, which would arguably not be limited by jurisdiction, is to follow the approach taken by the ICJ in the Bosnian Genocide case.518 Article 4(1) CAT lays down the obligation to criminalise all acts of torture, including attempts and acts which constitute complicity or participation in torture. It is not relevant where any of these acts were committed. As the ICJ held in the Bosnian Genocide case, it would ‘not be in keeping with the object and purpose of the Convention to deny that the international responsibility of a State (…) can be engaged through one of the acts, other than [torture] itself, enumerated in Article [4(1)].’519 But there is a difference between the wording in the Genocide Convention and the Torture Convention: while the former explicitly refers to ‘the responsibility of a State’ in its dispute settlement clause,520 the latter does not.521 Still, as the lack of such a reference has not prevented the CmAT from finding states directly responsible for committing acts of torture on the basis of Article 2 CAT or even Article 1 CAT, there is no reason that this would be a barrier for complicity in torture either.522 Given the explicit obligations to prevent torture and to criminalise complicity in torture and the implicit obligation to refrain from committing torture, it only makes sense that the obligation to refrain from complicity is implied in the Torture Convention too. It goes without saying that all States are prohibited from complicity in torture under customary international law, and whether or not such a prohibition exists under the Torture Convention would not make a difference. Simply put, when the conditions for the general complicity rule are met, States will incur responsibility on that basis. The added (practical) value of a prohibition under the Torture Convention has to do with the fact that this treaty contains rights which are justiciable for individuals and a dispute settlement clause for States. It may be assumed that a prohibition of complicity is inherent in the Torture Convention, and that where there are no indications to the contrary, its conditions and scope would not deviate from those of the general complicity rule. However, as the case discussed next illustrates, the main issue is whether the implied obligation to refrain from complicity in torture would have extraterritorial application. 517 In brief, the threshold criterion of jurisdiction in human rights treaties limits their scope of application, which primarily governs the vertical relationship between States as duty-bearers and individuals as rights-holders, to situations where an individual is within a State’s territory or otherwise within its jurisdiction. See further Chapter 5, Section 5.1. 518 Cf Aust (2011) 393. 519 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, JE Méndez, UN Doc A/HRC/25/60, 10 April 2014, para. 48, and ICJ Bosnian Genocide para. 167. 520 See Article IX Genocide Convention. 521 See Article 30 Torture Convention. 522 See Malkani (2013) 526; Fulton (2015) 782; report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, JE Méndez, UN Doc A/HRC/25/60, 10 April 2014, para. 48; and Interim report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, JE Méndez, UN Doc A/70/303, 7 August 2015, para. 21. Cf NHB Jørgensen (2017) 22. PROEF PS Joelle Trampert.job_08/28/2024_49A 98 3.2.2. The CmAT’s decision on admissibility in M.Z. v Belgium To date, only one complaint seems to have been brought before the CmAT regarding a State party’s complicity in acts of torture committed abroad. This complaint was submitted in 2017 by Mr Zemmouri, a Belgian citizen, who alleged that Belgium was responsible for complicity in acts of torture committed by US agents during his detention in Guantánamo Bay.523 Mr Zemmouri claimed that Belgian State agents had not only visited him during his detention and failed to secure his release, but that they had also interrogated him and shared unverified and incriminating information obtained in these interrogations with the US.524 Invoking Article 2 CAT, he argued that Belgium had failed to take measures to prevent State agents from consenting to or acquiescing in acts of torture or ill-treatment perpetrated at Guantánamo Bay, and that this amounted to complicity.525 He also claimed that Belgium had breached its procedural obligations to investigate and prosecute. As for Belgium’s jurisdiction in the sense of Article 2(1) CAT, the complainant argued that Belgium had exercised extraterritorial jurisdiction over him on the basis of the personal model, which goes beyond the narrow conception of territory and includes situations where State exercises control over persons in detention too.526 Belgium disputed this.527 Regrettably, the CmAT did not engage with the substance of the complaint at all and dismissed it as inadmissible due to the fact that it had already been ‘examined’ by the ECtHR, which had in turn rejected it ‘for lack of substantiation.’528 We cannot be certain what the actual reason for inadmissibility was, but it is highly likely that the ECtHR found that the applicant was not within Belgium’s jurisdiction in the sense of Article 1 ECHR.529 As the Committee did not decide on the merits, the case contains no information on any complicity rule, let alone one that would apply in a cross-border context. However, Committee member Hani stated in a dissenting opinion that the majority should have determined whether Belgium had exercised personal jurisdiction over the applicant and other nationals held in Guantánamo Bay.530 He also concluded that Belgium ‘should be held partly responsible for the 523 M.Z. v Belgium, UN Doc CAT/C/67/D/813/2017 (CmAT, 2 August 2019). 524 Id, para. 7.9. 525 Id, paras 7.8-7.9. 526 Id, para. 7.5, citing Lopez Burgos v Uruguay, UN Doc CCPR/C/13/D/52/1979 (HRC, 29 July 1981) paras. 12.1–12.3 and General Comment No. 31 on the nature of the general legal obligation imposed on States parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (HRC, 26 May 2004) para. 10. See also the references to CmAT General Comment No. 2 para. 16 and Conclusions and recommendations following the report of the United States of America, UN Doc CAT/C/USA/CO/2 (CmAT, 25 July 2006) para. 17, recalling that ‘intelligence activities, notwithstanding their author, nature or location, are acts of the State party, fully engaging its international responsibility.’ It should be noted that the Committee made this statement in relation to the US’ secret detention facilities. 527 CmAT M.Z. para. 6.5. 528 Id, paras 2.17, 4.1-4.4, 5.1-5.5, and 10.4, and see Article 22(5)(a) CAT. See also Articles 34 and 35 ECHR. 529 See also Belgium’s position in CmAT M.Z. para. 6.5. See for an analysis and critique AS Galand, ‘Defer or Revise? Horizontal Dialogue Between UN Treaty Bodies and Regional Human Rights Courts in Duplicative Legal Proceedings’ (2023) 23 Human Rights Law Review 1, 10-12. 530 Separate Opinion of Committee member Hani (dissenting), para. 12, to CmAT M.Z. The focus on the jurisdictional link between Belgium and its own nationals raises the issue what the outcome would be if Belgium’s conduct was the same, but the victim would not have had a Belgium passport. PROEF PS Joelle Trampert.job_08/28/2024_49B 99 lack of effective measures to prevent the complainant from being subjected to torture, in violation of [Article 2(1) and (2) CAT]).’531 Citing almost verbatim the paragraph of the General Comment quoted above,532 he added that the conduct of the Belgian authorities could be considered as de facto permission for the acts of torture ‘comparable to complicity’.533 For now, the only conclusion that can be drawn from this case is that at least in 2019, the CmAT was not prepared to address the contentious issue of a State’s responsibility for complicity in torture in an extraterritorial context.534 But even if a prohibition of complicity in torture under the Torture Convention would be limited by jurisdiction, State parties have other obligations that are relevant in situations where the principal violation takes place outside the State’s jurisdiction. By extension, this will also mean that the victim is (eventually) located abroad. As noted above, States are obliged under Article 4 CAT to ‘ensure that all acts of torture are offences under [their] criminal law’, including conduct that constitutes complicity in torture, and regardless of where such acts take place.535 Under Article 6 CAT, a State in whose territory a person alleged to have committed any offence referred to in Article 4 is present, is obliged to take them into custody or take other legal measures to ensure their presence, and to make a preliminary inquiry into the facts.536 Then, under Article 7(1) CAT, that State is obliged to extradite or prosecute them.537 Had Mr Zemmouri’s case been found admissible, the CmAT may have found that Belgium had at least breached its procedural obligation to investigate its agents’ alleged complicity in his torture, which occurred in Guantánamo Bay.538 This obligation also exists in a different scenario, concerning the trade in inherently abusive goods.539 If company C, operating from and located in State A, willingly and wittingly sells goods used for torture to State B, and State B commits acts of torture with those goods, company C’s conduct, which can arguably be qualified as complicity in torture, will be criminalised in State A (and in State B).540 As company C and the 531 Id, para. 15. 532 Id, para. 13. See again CmAT General Comment No. 2 para. 18. 533 Id, para. 14. 534 See also Galand (2023) 11. 535 Article 4(1) CAT. 536 Article 6(1) and (2) CAT. 537 See also Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgement, ICJ Reports 2012, 422 (ICJ, 20 July 2012) paras 94-95. 538 Cf Article 12 CAT. See also EWHC Al-Saadoon and Others para. 190, stating that an investigative duty would arise under Article 3 ECHR in relation to complicity in torture. 539 To date, the trade in inherently abusive goods or goods which have a heightened risk of being used to commit acts of torture or other ill-treatment including the death penalty, is unregulated under international law, besides in the EU under Regulation (EU) 2019/125 of the European Parliament and of the Council of 16 January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment OJ L30/1 (ATR). See on the issue of this regulatory gap the work of Amnesty International and Omega Research Foundation, e.g. in the report entitled ‘Ending the Torture Trade – the Path to Global Controls on the “Tools of Torture”’, 11 December 2020. See also the Interim report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A Edwards, UN Doc A/78/324, 24 August 2023. 540 See also M Pollard, ‘Rotten Fruit: State Solicitation, Acceptance, and Use of Information Obtained through Torture by Another State’ (2005) 23(3) Netherlands Quarterly of Human Rights 349, 364. PROEF PS Joelle Trampert.job_08/28/2024_50A 100 individuals in charge are present in State A, that State will be required to investigate their conduct.541 Also relevant to cross-border transfers, albeit of a different kind, is the principle of non-refoulement. Under Article 3 CAT, States are prohibited from transferring an individual to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture or other ill-treatment there. By definition, that individual will be within the transferring State’s jurisdiction, although if the principal violation materialises, this will occur abroad. In this sense, the principle of non-refoulement is no different to any other substantive duty under IHRL, as it depends on the (physical) location of the (potential) victim.542 3.2.3. The conditions of refoulement and complicity compared In contrast to complicity, there is an abundance of output on the principle of non-refoulement. It is a functionally similar rule,543 in the sense that otherwise lawful conduct can become unlawful due to how it contributes to the principal violation.544 The previous Section presented Trapp’s and Seibert-Fohr’s idea of reading a rule which captures State conduct in between complicity and a failure to intervene into the Genocide Convention. The principle of non-refoulement, codified in Article 3 CAT, is such a rule, and both authors referred to it as a model.545 Article 3 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. This rule is part of customary international law and has been read into the absolute prohibition of torture as codified in other human rights treaties, including Article 3 ECHR546 and Article 7 ICCPR.547 Some scholars view Article 3 CAT and the principle of non-refoulement as a positive obligation, as it is included in the CAT to give effect to the overarching obligation to prevent in Article 2(1) CAT and is 541 Id, 354, also citing the work of A Clapham. 542 See also Pollard (2005) 364. 543 Aust (2011) 393 and further. 544 Id, 393-401, especially at 397; Jackson (2016) 824; M Ammer and A Schuechner, ‘Article 3, Principle of Non-Refoulement’ in M Nowak, M Birk, G Monina (eds) The United Nations Convention Against Torture and its Optional Protocol: A Commentary (OUP 2019, 2nd edition) 100; and Egan (2019) 86-87, engaging with Jackson’s and Aust’s view. 545 See Trapp (2015) 254-255 and Seibert-Fohr (2017) 685-686. 546 ECtHR Soering para. 88. 547 General Comment No. 20 on Article 7 (prohibition of torture or other cruel, inhuman or degrading treatment or punishment) HRI/GEN/1/Rev.1 at 30, 29 July 1994 (HRC, 10 March 1992) para. 9. PROEF PS Joelle Trampert.job_08/28/2024_50B 101 aimed at protecting individuals from potential, future acts of torture by third parties.548 The UK also focused on this protective aim in its intervention in the case of Saadi v Italy before the ECtHR. While acknowledging that the prohibition of torture in Article 3 ECHR was absolute, it argued that when the treatment in question would be inflicted by another State, States party to the ECHR were ‘bound by a positive obligation of protection against torture implicitly derived from Article 3 [ECHR]’.549 The UK then contended that ‘in the field of implied positive obligations, the Court had accepted that the applicant’s rights must be weighed against the interests of the community as a whole.’550 In other words, the UK argued that the principle of non-refoulement was a positive obligation of protection that allowed for a balancing exercise.551 The ECtHR did not accept these arguments, adding that since ‘protection against the treatment prohibited by Article 3 [ECHR] is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment,’552 thereby phrasing the principle of non-refoulement in negative terms.553 This is also consistent with the wording of Article 3(1) CAT, which dictates that ‘no State shall’; not that ‘States must ensure’, or words to that effect. As such, the prohibition of refoulement operates differently to positive obligations, which are often duties of conduct or means conditioned by a standard of due diligence. This is apparent from the ICJ’s interpretation of the obligation to prevent genocide in the Bosnian Genocide case,554 and the ECtHR’s explanation of substantive positive obligations relating to the prohibition of torture and the right to life.555 Moreover, while positive obligations often appear to be more onerous for States, negative obligations can actually be more exacting in that they require a certain outcome. Understanding the prohibition of refoulement as a negative obligation is not negated by the fact that it requires States to conduct a risk assessment prior to a transfer, which is a positive and 548 For arguments why the principle of non-refoulement should be seen as a positive obligation, see M Hakimi, ‘State Bystander Responsibility’ (2010) 21(2) European Journal of International Law 341, 343 and 366; Tzevelekos (2014) 159-160; K Greenman, ‘A Castle Built on Sand? Article 3 ECHR and the Source of Risk in Non-Refoulement Obligations in International Law’ (2015) 27(2) International Journal of Refugee Law 264, 279; and V Tzevelekos and E Katselli Proukaki, ‘Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?’ (2017) 86 Nordic Journal of International Law 427, 439. 549 Saadi v Italy, App No. 37201/06 (ECtHR, 28 February 2008) para. 120. 550 Id. 551 Id, para. 122. See also the joint submissions of third-party interveners Lithuania, Portugal, Slovakia and the United Kingdom in the case of Ramzy v the Netherlands, App No. 25424/05 (decision) (ECtHR, 27 May 2008) paras 125-130. 552 ECtHR Saadi para. 138. See Greenman (2015) 279, noting that the ECtHR did not explicitly reject the UK’s framing of the principle of non-refoulement as a positive obligation either. 553 See also ECtHR Al-Saadoon and Mufdhi para. 123, Hirsi Jamaa and Others v Italy [GC] App No. 27765/09 (ECtHR, 23 February 2012) para. 114, Paposhvili v Belgium [GC] App No. 41738/10 (ECtHR, 13 December 2016) para. 188, and Ilias and Ahmed v Hungary [GC] App No. 47287/15 (ECtHR, 21 November 2019) para. 126. 554 ICJ Bosnian Genocide para. 430. 555 See e.g. O’Keeffe v Ireland [GC] App No. 35810/09 (ECtHR, 28 January 2014) para. 144, X. and Others v Bulgaria [GC] App. No. 22457/16 (ECtHR, 2 February 2021) paras 181-183, Osman v the United Kingdom [GC] App No. 23452/94 (ECtHR, 28 October 1998) para. 116, and especially Kurt v Austria [GC] App No. 62903/15 (ECtHR, 15 June 2021) paras 158-160. PROEF PS Joelle Trampert.job_08/28/2024_51A 102 arguably even a procedural obligation.556 The obligation to conduct a risk assessment is included explicitly in Article 3(2) CAT. Den Heijer has concluded that ‘if one insists on labelling the prohibition of refoulement as either a positive or negative obligation, the most tenable solution probably is to consider removal cases as hybrid cases which impose both positive and negative obligations on an expelling State,’ the positive obligation primarily being the requirement to conduct a risk assessment.557 This is indeed a good way to see it. It is clear that the prohibition of refoulement and the prohibition of complicity are functionally similar. In an article on Council of Europe member States’ complicity in torture in an extraterritorial context, Jackson has also demonstrated how the prohibition of refoulement can be (re)conceptualised as a narrow, preventive complicity rule: narrow as it requires States not to assist the commission of torture in one specific way, namely through removal; preventive as it is triggered by the real risk of torture, and thus before acts of torture have been committed.558 Evidently, the material element of complicity, even in relation to torture, is much broader than for the prohibition of refoulement, as the latter covers one specific type of conduct: the transfer of a person from State A to State B. All imaginable types of transfer are covered, from extradition to rendition to rejection at State borders and push-backs at sea.559 By definition, removal will always be active, and it is hard to see how it could result from an omission. As argued in Chapter 2, complicity can result from both active and passive conduct, and this is no different in situations of torture. The scenario where State A allows State B to use a site on its territory and does nothing despite knowing that State B holds people incommunicado and subjects them to acts of torture there could be seen as active conduct by State A, but it could equally be framed as an omission. In its observations in M.Z., Belgium also accepted the possibility of complicity in torture by omission.560 More so than for the other international crimes and serious human rights violations covered in this study, many types of conduct can contribute to torture, ranging from sharing information on a terrorist suspect to handing someone a bottle of water. Under normal circumstances, these acts will be perfectly lawful, but they become unlawful due to their connection to the principal violation. While it is necessary for complicity to prove that the conduct constituting the act of assistance significantly contributed to the commission of torture by the principal actor, no nexus is required for the prohibition of refoulement. There, the only legally relevant link is the one between the act of removal and the existence of a risk; 556 See Seibert-Fohr (2017) 687 and N Mavronicola, Torture, Inhumanity and Degradation under Article 3 of the ECHR – Absolute Rights and Absolute Wrongs (Hart 2021) 161. See also ECtHR Hirsi Jamaa paras 146-147 and 156-157. Note that the principle of non-refoulement also requires other positive, preventive measures, such as ensuring that individuals facing deportation have access to a lawyer and have the right to appeal the decision. See General Comment No. 4 on the implementation of Article 3 of the Convention in the context of Article 22, UN Doc CAT/C/GC/4 (CmAT, 4 September 2018) para. 18. 557 M den Heijer, ‘Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights’ (2008) European Journal of Migration and Law 277, 291. 558 Jackson (2016) 824. 559 See CmAT General Comment No. 4 para. 4. 560 CmAT M.Z. para. 6.7. PROEF PS Joelle Trampert.job_08/28/2024_51B 103 whether or not the principal violation eventually occurs, is irrelevant (and also beside the point, as this is what the rule is meant to prevent). In other words, the act of refoulement does not need to contribute, in any way, to the materialisation of the ultimate harm. Another key distinction between complicity in torture and the prohibition of refoulement relates to the knowledge of the complicit or transferring State. For responsibility for complicity, the State must have (ii) actual knowledge, i.e., practical certainty, of the commission of the principal violation, and, at a minimum, have (iii) actual knowledge of how its conduct will contribute to the commission of the principal violation and yet still proceed with its act of assistance regardless.561 For refoulement, the object of knowledge is the risk: the prohibition of refoulement is triggered when there are ‘substantial grounds for believing’ that an individual would face the risk of being subjected to torture or other ill-treatment in the recipient State. Such grounds exist when the risk of torture is ‘foreseeable, personal, present and real’.562 This is also a standard of constructive knowledge: the CmAT has consistently considered what the State knew or should have known about the real risk of torture at the time of the removal.563 In a 2014 report on the use of torture-tainted evidence, Special Rapporteur Méndez found that States can incur responsibility for complicity in torture ‘when [the State in question] was aware of the risk that information was obtained by torture or other ill-treatment, or ought to have been aware of that risk and did not take reasonable steps to prevent it.’564 While these statements do not carry the same weight as a binding judgement and it is debatable how the use of torture-tainted evidence could significantly contribute to the commission of torture,565 this standard of constructive knowledge is in line with IHRL, including the prohibition of refoulement and the obligation to prevent torture, as well as the obligation to prevent genocide as interpreted by the ICJ.566 Could complicity under the Torture Convention have a lower standard of knowledge than the general complicity rule? In his article on intelligence sharing in multinational military operations and State responsibility for complicity under international law, Milanovic has argued that ‘[i]n principle, the culpability elements of other [regime-specific] complicity rules that protect particularly compelling interests can only be identical to or lower, but not higher, than that of Article 16 [ASR].’567 In light of the gravity of the principal violation, this makes sense. Thus, the knowledge requirement of the complicity rule implied in the Torture Convention will definitely be fulfilled when the standard of knowledge required for the general complicity rule has been met, but a lower standard may also apply. 561 Its own conduct constituting the act of assistance must also be deliberate (i). 562 See CmAT General Comment No. 4 para. 11 and references cited therein. 563 See again CmAT Agiza para. 13.2. 564 Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, JE Méndez, UN Doc A/HRC/25/60, 10 April 2014, para. 53. 565 See Chapter 2, 2.2.3.1. 566 See Milanovic (2021) 1348-1349. 567 Id, 1369. PROEF PS Joelle Trampert.job_08/28/2024_52A 104 3.2.4. Responsibility for refoulement versus responsibility for complicity The overlap and the difference between the prohibition of refoulement and complicity is apparent from the case of Agiza v Sweden, which was decided by the CmAT in 2005.568 Mr Agiza, an Egyptian national, had applied for asylum with his family in Sweden in 2000. Their applications were rejected on 18 December 2001. On that same day, Mr Agiza was arrested and deported to Egypt, where he had previously been tried and sentenced in absentia for crimes related to terrorism. He was subsequently subjected to torture in prison. The question before the CmAT was whether his transfer to Egypt had breached Article 3 CAT, given what ‘was known, or ought to have been known, to the State party’s authorities at the time of the removal.’569 The Committee found that the Swedish authorities did indeed know, or at least should have known, that there was a consistent and widespread use of torture by Egyptian prison officials against individuals who were detained for political and security reasons. Sweden ‘was also aware of the interest in the complainant by the intelligence services of two other States: (…) the first foreign State offered through its intelligence service an aircraft to transport the complainant to the second State, Egypt’.570 While the CmAT did not explicitly say so, this foreign State was the US. This was also no ordinary removal; although it followed a formal procedure, Agiza’s deportation was part of the US’ ‘war on terror’.571 On Sweden’s compliance with Article 3 CAT, the Committee held that: [T]he natural conclusion from these combined elements, that is, that the complainant was at a real risk of torture in Egypt in the event of expulsion, was confirmed when, immediately preceding expulsion, the complainant was subjected on the State party’s territory [at the airport, JT] to treatment in breach of, at least, article 16 of the Convention by foreign agents but with the acquiescence of the State party’s police. It follows that the State party’s expulsion of the complainant was in breach of article 3 of the Convention. The procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.572 The Committee explained why it had come to this conclusion, as in the ‘largely analogous complaint’ of Mr Agiza’s wife, submitted and decided a year and a half before his case, it had found the very same 568 The facts in Agiza are virtually identical to those in Alzery v Sweden, UN Doc CCPR/C/88/D/1416/2005 (HRC, 25 October 2006), discussed in Chapter 5, Section 5.2, below. 569 CmAT Agiza para. 13.2. [Underlining omitted] The last part of this paragraph reads: ‘Subsequent events are relevant to the assessment of the State party's knowledge, actual or constructive, at the time of removal.’ 570 Id, para. 13.4. 571 See the reporting of The Rendition Project, a research project co-directed by Professor R Blakeley at the University of Sheffield (previously the University of Kent) and Dr S Raphael at the University of Westminster at <https://www.therenditionproject.org.uk/prisoners/agiza_elzery.html>. See also T van Boven, ‘Het Anti-Foltercomité Scherpt het Non-Refoulement Beginsel Aan’ (2006) 31(5) Nederlands Tijdschrift voor de Mensenrechten 746, 751, and Egan (2019) 92. 572 Id, para. 13.4 [Emphasis mine] PROEF PS Joelle Trampert.job_08/28/2024_52B 105 assurances regarding Mr Agiza’s treatment in Egypt to be satisfactory.573 In his wife’s case, the Committee had concluded that given Sweden’s regular monitoring of Mr Agiza’s detention conditions in Egypt and the fact that Egypt was a party to the Torture Convention, Sweden’s decision to deport her was compatible with Article 3 CAT.574 However, the Committee had acquired new information, including ‘the actual report of mistreatment provided by [Agiza] to the [Swedish] Ambassador at his first visit and not provided to the Committee by the State party’. It had also since learned of: [T]he mistreatment of the complainant by foreign intelligence agents on the territory of the State party and acquiesced in by the State party’s police; the involvement of a foreign intelligence service in offering and procuring the means of expulsion; the progressively wider discovery of information as to the scope of measures undertaken by numerous States to expose individuals suspected of involvement in terrorism to risks of torture abroad; the breach by Egypt of the element of the assurances relating to guarantee of a fair trial, which goes to the weight that can be attached to the assurances as a whole; and the unwillingness of the Egyptian authorities to conduct an independent investigation despite appeals from the State party’s authorities at the highest levels.575 The Committee’s reconsideration of its position on diplomatic assurances is not surprising, given what came to light on Mr Agiza’s mistreatment as well as the mistreatment of terrorist suspects in general. The most interesting part of these paragraphs, however, is the Committee’s finding on the applicant’s ill-treatment prior to his removal at the hands of foreign agents and with the acquiescence of the Swedish police. The Committee did not find Sweden in breach of any other substantive duty, but in its reasoning, it made clear that Swedish officials acquiesced in the applicant’s ill-treatment carried out by foreign, i.e., American, intelligence agents, at the airport. The applicant’s complaint was based on Article 3 CAT, and the Committee established Sweden’s responsibility under this heading.576 In light of what would still emerge on the scope of the extraordinary rendition programme and European States’ complicity therein, this finding may seem limited or unsatisfactory. While the Committee likely noted Sweden’s acquiescence as a reference to the definition of ill-treatment in Article 16 CAT, it probably also wanted to emphasise Sweden’s role in what was not an ordinary removal but a rendition operation. The Committee did not make any other findings on acquiescence in ill-treatment, but it did use this in its assessment of Sweden’s compliance with the prohibition of refoulement.577 Besides a distinction on the point of when responsibility can be assigned, the main difference between complicity and a breach of the prohibition of refoulement pertains to what responsibility is assigned for. 573 Id, para. 13.5 and Attia v Sweden, UN Doc CAT/C/31/D/199/2002 (CmAT, 17 November 2003) especially para. 12.3. 574 CmAT Attia paras 12.1-12.3 and Agiza para. 2.5. 575 CmAT Agiza para. 13.5. 576 Id, para. 14, also noting a breach of Article 22 CAT. 577 See also HRC Alzery para. 11.6. PROEF PS Joelle Trampert.job_08/28/2024_53A 106 It is clear that the prohibition of refoulement proscribes the exposure of an individual to a risk, not necessarily the contribution to torture or ill-treatment as such.578 When a State decides to transfer someone while it knew or should have known that this would expose them to the real risk of torture, that will immediately breach the prohibition of refoulement, regardless of whether or not the person is subjected to torture after they were removed.579 This breach entails the State’s responsibility ex ante, i.e., prior to and irrespective of the principal violation materialising. If the principal violation does eventually take place, the State will not be responsible for contributing to the principal violation per se, but primarily for creating or contributing to the risk. This was the case in Agiza too. Having said that, the prohibition of refoulement evidently also proscribes conduct that (significantly) contributes to torture or other ill-treatment and complicity and the prohibition of refoulement can apply in tandem.580 As the decision in Agiza shows, the prohibition of refoulement can be used to address a State’s responsibility in a potential complicity scenario too. It is both a practical option and a powerful tool to prevent and address contributions to principal violations which cause grave and often irreparable harm. But just like responsibility for a failure to prevent, assigning responsibility for refoulement alone might not always adequately reflect the role of the State in question. The Swedish authorities did not only expose Mr Agiza to a risk of treatment contrary to the Torture Convention; they facilitated it, and Swedish police even acquiesced in conduct which constituted at least ill-treatment prior to his transfer from Sweden to Egypt. As the complaint was based on Article 3 CAT, it makes sense that the Committee considered and assigned Sweden’s responsibility on that basis. But in light of the facts of the case and the totality of Sweden’s conduct, an explicit finding of Sweden’s contribution to his torture or other ill-treatment would have been (more) appropriate. Likely, this is what the Committee wished to stress when they made reference to the Swedish police’s conduct at the airport. 3.2.5. State involvement in conduct of non-State actors A final issue left to pick up on is whether States can incur responsibility under the Torture Convention when they are involved in acts of torture or ill-treatment committed by NSAs. The initial reason for excluding the conduct of private actors from the Torture Convention’s scope of application was that torture committed by individuals was already recognised as a crime which was meant to be prosecuted 578 See also Aust (2011) 393-401 and Milanovic (2021) 1335. 579 In this sense, the prohibition of refoulement is similar to so-called endangerment offences in criminal law, i.e. offences which target behaviour that creates or contributes to the risk of harm, often to another person’s life or physical integrity, even if the actual (and possibly desired) harm does not occur. See A Duff, ‘Criminalizing Endangerment’ (2005) 65(3) Louisiana Law Review 941 and A Duff and T Hörnle, ‘Crimes of Endangerment’ in K Ambos, A Duff, A Heinze, J Roberts and T Weigend (eds) Core Concepts in Criminal Law and Criminal Justice II (CUP 2022). In this sense, endangerment offences are also examples of inchoate liability. 580 Jackson (2016) 823-824. PROEF PS Joelle Trampert.job_08/28/2024_53B 107 in each State’s justice system.581 However, reality shows that States may be unable or unwilling to prevent, investigate, prosecute, and punish situations of, for example, discriminatory violence or domestic abuse, and feminist legal scholars have criticised the definitions of torture and ill-treatment in Articles 1 and 16 CAT respectively.582 There are instances where the CmAT has considered the obligation to prevent torture and the prohibition of refoulement to apply to situations of ill-treatment and even torture at the hands of NSAs. In the case of Elmi v Australia, the Committee held that there were substantial grounds for believing that the applicant would face the risk of torture at the hands of the Hawiye clan if they were returned to Somalia.583 While this was the first time that the Committee found that torture could be committed by an NSA, Fortin has cautioned against reading too much into this, as the Hawiye clan was a non-State armed group exercising ‘quasi-governmental authority’ in a country with no functioning State apparatus.584 Another decision referred to by the CmAT in its General Comment on Article 3 CAT is the case of M.K.M. v Australia, which concerned the prohibition of refoulement in relation to the applicant’s removal to Afghanistan, where he faced the risk of torture by the Taliban.585 The Committee held that by rejecting the applicant’s asylum application without properly taking into consideration that ‘the Afghan authorities are not in a condition to protect [him] from further persecution by the Taliban, [Australia] failed to investigate sufficiently whether the complainant would be in danger of being subjected to torture or ill-treatment if returned to Afghanistan.’586 Here too, these findings cannot be taken to imply that the requirement of a minimum amount of State involvement has been relaxed with respect to torture. As noted above in 3.2.1, the terms ‘consent’ and ‘acquiescence’ in Articles 1(1) and 16(1) CAT can bring scenarios where abuses are committed by NSAs within the scope of the Torture Convention. Notably, in the case of Dzemajl and Others v Yugoslavia, the Committee held that there was ‘a violation’ of Article 16(1) CAT by the State Party, as the State’s police, despite being aware of the immediate risk that the applicants were facing and being present at the scene, did not take any steps to protect them.587 Similarly, in Osmani v Serbia, the Committee found that: [I]rrespective of whether the persons who had caused bodily injury to the complainant and verbally abused him were or were not public officials, the State party’s authorities who witnessed the events and failed to 581 See R McCorquodale and R LaForgia, ‘Taking off the Blindfolds: Torture by Non-State Actors’ (2001) 1(2) Human Rights Law Review 189, 192. 582 See H Charlesworth, C Chinkin and S Wright, ‘Feminist Approaches to International Law’ (1991) 85(4) American Journal of International Law 613, 627-629 and H Charlesworth, ‘Feminist Methods in International Law’ (1999) 93(2) The American Journal of International Law 379, 382 and 387-388. See also N Rodley, ‘The Definition(s) of Torture in International Law’ (2002) 55(1) Current Legal Problems 467. 583 Elmi v Australia, UN Doc CAT/C/22/D/120/1998 (CmAT, 14 May 1999) paras 6.8-6.9. 584 Fortin (2017) 220. 585 CmAT General Comment No. 4 para. 30. 586 M.K.M. v Australia, UN Doc CAT/C/60/D/681/2015 (CmAT, 10 May 2017) para. 8.9. 587 Dzemajl and Others v Yugoslavia, UN Doc CAT/C/29/D/161/2000 (CmAT, 21 November 2002) para. 9.2. PROEF PS Joelle Trampert.job_08/28/2024_54A 108 intervene to prevent the abuse have, at the very least “consented or acquiesced” to it, in the sense of article 16 of the Convention.588 The police’s inaction resulted in ‘a violation’ of Article 16(1) CAT. Leaving aside the Committee’s use of a definition as if it was an independent obligation, it can be concluded that – perhaps more so than for the prohibition of refoulement – State agents’ acquiescence not only brings the facts of a case within the scope of the Torture Convention, but can also lead to the State’s responsibility on that basis. As will be discussed in Chapter 5, the notion of State agents’ acquiescence has been employed by the HRC and the ECtHR to give expression to States’ responsibility too, especially, but not exclusively, when the principal violation was committed by an NSA. 3.3. The ILC’s draft Articles on Crimes against Humanity The final Section of this Chapter discusses the inclusion of complicity in the DACAH (3.3.1), as well as the prohibition of refoulement (3.3.2) and two obligations to prevent (3.3.3). The last paragraph highlights an obligation not expressly included in either of the two ‘prevention conventions’ discussed above, namely the obligation to ‘establish the liability of legal persons’ (3.3.4). 3.3.1. The implied complicity rule in the DACAH Unlike for genocide or war crimes, there is no comprehensive treaty regarding State obligations for crimes against humanity, and therefore no immediate basis for the ICJ (or another adjudicatory body) to pronounce on a State’s responsibility in relation to these crimes.589 The DACAH lay the groundwork for such a treaty. Draft Article 1 sets out the DACAH’s scope, and draft Article 2 provides the definition of crimes against humanity. Draft Article 3 then lists the general obligations that States have in relation to this category of crimes. The ILC’s Commentary makes clear from the outset that while some aspects reflect international custom, codification was not the main objective; ‘rather, [the aim was to draft] provisions that would be both effective and likely acceptable to States, based on provisions often used in widely adhered-to treaties addressing crimes, as a basis for a possible future convention.’590 That being said, the obligations to refrain from committing acts which constitute crimes against humanity and to prevent and punish crimes against humanity are undoubtedly part of customary international law. Draft Article 3 DACAH reads: 588 Osmani v Serbia, UN Doc CAT/C/42/D/261/2005 (CmAT, 8 May 2009) para. 10.5. 589 See also ICJ Bosnian Genocide paras. 147, 148, and 277 and LN Sadat, ‘A Contextual and Historical Analysis of the International Law Commission’s 2017 Draft Articles for a New Global Treaty on Crimes Against Humanity’ (2018) 16(4) Journal of International Criminal Justice 683, 685-686. 590 ILC General Commentary to the DACAH, para. 3. PROEF PS Joelle Trampert.job_08/28/2024_54B 109 Article 3 General obligations 1. Each State has the obligation not to engage in acts that constitute crimes against humanity. 2. Each State undertakes to prevent and to punish crimes against humanity, which are crimes under international law, whether or not committed in time of armed conflict. 3. No exceptional circumstances whatsoever, such as armed conflict, internal political instability or other public emergency, may be invoked as a justification of crimes against humanity. It is noteworthy that the DACAH include an explicit obligation of restraint for States in the text of the first substantive provision. In his first report for the project, Special Rapporteur Murphy stated that the general obligation to prevent and punish crimes against humanity consists of two types of duties: the obligation for States ‘not to commit such acts through its own organs or persons over whom they have control such that their conduct is attributable to the State under international law’ and the obligation ‘to employ the reasonable means at its disposal, when necessary, appropriate and lawful, to prevent others not directly under its authority from committing such acts.’591 This follows the Genocide Convention and the judgement in the Bosnian Genocide case, where the ICJ held that ‘the obligation to prevent (…) necessarily implies the prohibition of the commission of [the crime]’, which the Special Rapporteur also referenced.592 In his final report, Murphy addressed some States’ comments that the prohibition should be made more explicit and recommended that is would be included in the draft Article on the obligation to prevent in a new and separate paragraph.593 He added: The commentary could then explain the parameters of a State’s obligation not to commit such acts through its organs, or through persons over whom it has such control that their conduct is attributable to the State under international law, and not to assist in the commission of such acts by others.594 The Commentary states that the negative obligation included in draft Article 3(1) consists of two components: States have the obligation to refrain from committing these crimes through their organs,595 and ‘States have obligations under international law not to aid or assist, or to direct, control or coerce, another State in the commission of an internationally wrongful act.’596 A footnote at the end of this sentence refers to Articles 16-18 ASR, but no further explanation or elaboration is provided. While the choice not to expressly include a prohibition of complicity or assistance in a separate paragraph in the DACAH may have been deliberate, it is clear that the ILC as well as States now recognise the prohibition of complicity as an inherent part of the obligation not to commit crimes against humanity. 591 ILC Yearbook 2015, Vol. II(1), 219, First report of Special Rapporteur Murphy 252, para. 113. 592 Id, paras 96 and 113, with reference to ICJ Bosnian Genocide para. 166. 593 Then draft Article 4 [4] DACAH. 594 (ILC Yearbook 2019 n/a) UN Doc A/CN.4/725, Fourth report of Special Rapporteur Murphy 43, para. 117. 595 ILC Commentary draft Article 3 DACAH, para. 3. 596 Id, para. 6. [Emphasis mine] PROEF PS Joelle Trampert.job_08/28/2024_55A 110 The general complicity rule is thus not only referenced as a basis for responsibility, but also framed as an implied negative obligation, binding upon all States. This applies to the Genocide Convention and the Torture Convention too, meaning that the construction of a complicity rule on the basis of various treaty provisions, including the obligation to criminalise certain acts, is actually unnecessary.597 This is because a prohibition of complicity is implied in the prohibition of committing genocide or torture, which is also what the general complicity rule presumes. Whether it is a conscious decision or a drafting oversight, the ILC has limited the prohibition of complicity in crimes against humanity to inter-State relations, thereby following the exact text of Article 16 ASR, despite having accepted in 2011 that IOs can commit and be complicit in internationally wrongful acts, and crimes against humanity being committed by people, not ‘abstract entities’. This means that under the crimes against humanity regime as currently envisaged or worded, States would only incur responsibility for complicity in crimes against humanity if the crimes in question are committed by actors whose conduct can be attributed to another State. Of course, the preventive obligations apply in situations where States assist NSAs such as individuals or non-State armed groups, but this leaves a gap for State conduct which does not reach the level of strict or effective control over an NSA, but still has an effect on (i.e., significantly contributes to) the commission of the crime. The ICJ did apply the notion of complicity in a State-NSA constellation, and a future multilateral treaty for crimes against humanity should ensure that this is covered too. Finally, as with the general complicity rule and the prohibition of complicity in genocide, the complicity rule in the DACAH is not limited by any notion of territory or jurisdiction. This would also not make sense for a purely inter-State complicity rule, as such a rule would have an extremely limited scope of application (namely, State A assisting State B in the commission of crimes against humanity within State A’s territory). There is no need to discuss the constitutive elements of the complicity rule implied in the DACAH here, as there is no indication that these would deviate from the general one. It suffices to recall that crimes against humanity will qualify as a serious breach of a jus cogens norm, which means that the presumption of knowledge in the non-assistance rule comes into play. Instead, in the next three paragraphs, I briefly discuss the familiar and functionally similar prohibition of refoulement, the overarching positive obligation to prevent, and the obligation to establish liability of legal persons. This provides an overview of the ‘state of play’ on the international obligations that States currently have with respect to another international crime. 3.3.2. The prohibition of refoulement Draft Article 5 DACAH mirrors Article 3 CAT. Draft Article 5(1) specifies that ‘no State shall expel, return (refouler), surrender or extradite a person to another State where there are substantial grounds 597 See draft Article 6(2)(c) DACAH. PROEF PS Joelle Trampert.job_08/28/2024_55B 111 for believing that he or she would be in danger of being subjected to a crime against humanity’. The provision is worded in negative terms, with the Commentary noting that the obligation is ‘consistent with the broad objective of prevention’ in draft Article 4 DACAH and is meant ‘to prevent persons in certain circumstances from being exposed to crimes against humanity’.598 The Commentary also specifies that the provision is purposefully worded as ‘to another State’ instead of ‘to territory under the jurisdiction of another State’ in order to ‘encompass situations where the person is transferred from the control of one State to that of another even if it occurs within the same territory or occurs outside any territory (such as on or over the high seas).’599 Article 3 CAT is also not so limited, but apparently the ILC felt compelled to make this explicit anyway. Draft Article 5(2) DACAH details the factors that States must take into account when assessing the risk that someone would be subjected to a crime against humanity following the transfer.600 These include ‘the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.’ The Commentary mentions the practice of the ECtHR, the HRC, and the CmAT with respect to assurances, but does not add anything else.601 Importantly, the prohibition of refoulement in draft Article 5 DACAH is absolute, with the Commentary adding that treaties since the 1951 Refugee Convention do not permit any exceptions to the principle.602 3.3.3. Two obligations to prevent Returning to the general obligations, the positive obligation included in draft Article 3(2) DACAH states that ‘[e]ach State undertakes to prevent and to punish crimes against humanity’. This obligation mirrors the obligation to prevent genocide as laid down in Article I of the Genocide Convention.603 The general obligation to prevent in draft Article 3(2) DACAH is separate from the more specific obligation of each State to undertake to prevent crimes against humanity through ‘effective legislative, administrative, judicial or other appropriate preventive measures in any territory under its jurisdiction’ in Article 4(a) DACAH.604 This provision mirrors the obligation to take such measures in relation to (the crime of) torture reflected in Article 2(1) CAT.605 The general and specific obligations to prevent crimes against humanity differ in terms of their temporal and territorial scope. As van den Herik and 598 ILC Commentary draft Article 5 DACAH, para. 1. 599 Id, para. 2. 600 See also Article 3(2) CAT and Article 16(2) ICPPED. 601 ILC Commentary draft Article 5 DACAH, para. 10. 602 ILC Commentary draft Article 5 DACAH, para. 11 and Article 33(2) 1951 Refugee Convention. Cf H Jöbstl, ‘An Unforeseen Pandora’s Box? Absolute Non-Refoulement Obligations under Article 5 of the ILC Draft Articles on Crimes Against Humanity’ (EJIL:Talk!, 20 May 2019) <https://www.ejiltalk.org/an-unforeseen-pandoras-box-absolute-non-refoulement-obligations-under-article-5-of-the-ilc-draft-articles-on-crimes-against-humanity/>, noting the views of the UK, the US, and Jordan. See also the comment to this by T Molnár, arguing in favour of the absolute prohibition of refoulement. 603 ILC Commentary to draft Article 3 DACAH, para. 7. 604 Id. 605 ILC Commentary to draft Article 4 DACAH, para. 7. PROEF PS Joelle Trampert.job_08/28/2024_56A 112 Irving have also noted, the general obligations apply if crimes against humanity are about to be committed or are already ongoing and have extraterritorial reach,606 whereas the specific obligations require States to take measures within their own respective jurisdictions in order to make sure that the conditions for such crimes to be committed do not arise in the first place.607 The notion of ‘jurisdiction’ in draft Article 4 DACAH primarily covers the State’s own territory, but also covers other territory under a State’s jurisdiction, for example in cases of intervention or occupation.608 Conversely, the general obligation to prevent crimes against humanity is not limited by territory or jurisdiction at all, but it depends on States’ knowledge of the risk as well as each State’s individual capacity to influence the perpetrators. The object and standard of knowledge here is worth a closer look. 3.3.3.1. States’ knowledge and the general obligation to prevent As with the obligation to prevent genocide, the obligation to prevent crimes against humanity will arise when ‘the State learns of, or should normally have learned of, the existence of a serious risk’ that the crime in question will be committed.609 Responsibility for a breach of this obligation will arise when the State knew or ought to have known of the risk but failed to ‘employ the means at [its] disposal (…) to prevent persons or groups not directly under their authority from committing’ the crime.610 A standard of constructive knowledge goes hand in hand with positive obligations of due diligence, as such obligations impose a duty to ascertain the risks, and where necessary, to modify conduct accordingly. Van den Herik and Irving have contrasted this idea of constructive knowledge to the approach where a State’s actual knowledge cannot be proven, but ‘the accessibility and widespread availability of information is such that a reasonable person can be expected to have been aware.’611 The former would be ‘more far reaching’, because it implies that States have ‘procedural obligations’, namely an obligation to carry out a risk assessment.612 In other words, one approach requires States to actively seek out information, whereas the other bases a Sate’s knowledge on what can reasonably be presumed. This is closer to wilful blindness. In my view, a standard of constructive knowledge where the object of knowledge is a risk, necessarily imposes a duty to enquire into those risks. This has been made explicit for the prohibition of refoulement in Article 3(2) CAT and draft Article 5(2) DACAH, but it is also inherent in the obligations to prevent genocide and crimes against humanity. Moreover, in the 606 L van den Herik and E Irving, ‘Due Diligence and the Obligation to Prevent Genocide and Crimes Against Humanity’ in H Krieger, A Peters, and L Kreuzer (eds) Due Diligence in the International Legal Order (OUP 2020) 203. 607 Id, noting that they are ‘more truly preventative’. See also N van der Have, The Prevention of Gross Human Rights Violations Under International Human Rights Law (Springer 2018) 16. 608 See also ILC Commentary to draft Article 4 DACAH, para. 12, citing ICJ Namibia para. 118. 609 ICJ Bosnian Genocide para. 431. 610 Id, para. 166. See also ILC Commentary to draft Article 4 DACAH, para. 7, citing the Bosnian Genocide case. 611 Van den Herik and Irving (2020) 210. 612 Id. PROEF PS Joelle Trampert.job_08/28/2024_56B 113 Bosnian Genocide case, the ICJ did actually not just find that Serbia should have known of the risk of genocide and that it did not due to its own negligence; it found that Serbia must have known of the risk, given the information available at the time, of which there was evidence.613 Van den Herik and Irving have also observed that modern technologies, including social media and mobile phones, have implications for Sates’ actual or constructive knowledge of (the risk of) the commission of core crimes, either regarding information that was already in the public domain or that would have come to light following a risk assessment.614 I agree with them that: Digital technologies can increase the amount of information available to states, making it harder for states to argue that they did not, and should not, have known of the risk of genocide or crimes against humanity. While in the past states may have reasonably argued that they lacked actual or constructive knowledge of events taking place in remote and non-permissive regions, [modern] technology renders such arguments less credible, and increasingly so in the future.615 While one understanding of constructive knowledge is indeed more extensive than the other, namely, the interpretation based on what a State could reasonably be expected to know given what was in the public domain, the two approaches might not be all that different in practice. Most civil servants have access to traditional and social media and receive regular updates on the news around the world. Moreover, when States cooperate with other States or NSAs, for example by providing military support, they will often already be aware of potential risks in that area, or at least be in a better position to acquire information of those risks. In addition, reputable NGOs and journalists frequently and publicly report on what the ‘end-users’ of State support are doing, including concretely on what they are doing with that support. When this information is in the public domain, this will incentivise States to conduct a (more) rigorous enquiry as to how their conduct may contribute to the principal violations in question. The inevitable question is where this duty stops; when will a State have adequately fulfilled its obligation to conduct a risk assessment?616 The answer is of course highly case-specific, and will also depend on how long and how intensively the State has been supporting the principal actor in question. 3.3.3.2. State responsibility for involvement in crimes against humanity The point raised above with regard to the ICJ’s assessment of Serbia’s responsibility on the basis of the Genocide Convention applies equally here: there is a category of assistance in between complicity and a failure to prevent – understood as a failure to intervene – which contributes to the commission of the principal violation – in this case, crimes against humanity – but which might not have been provided 613 ICJ Bosnian Genocide para. 438. 614 Van den Herik and Irving (2020) 210-211. 615 Id, 214. 616 Id. PROEF PS Joelle Trampert.job_08/28/2024_57A 114 with the level of knowledge required for complicity. Given the high threshold for complicity and the importance of assigning responsibility in a manner befitting the State’s blameworthiness, a future treaty could cover this category of conduct and degree of involvement too. In comparison to the two obligations to prevent and the prohibition of refoulement, the notion of State complicity has not been given a prominent place in the DACAH. I have not been able to discern why this is so. One explanation could simply be that the general complicity rule, as one of the three bases for State responsibility ‘in connection with’ acts of another State, automatically applies here too, and did not need any further elaboration. Furthermore, as the envisaged crimes against humanity treaty is a ‘prevention convention’, it is logical that the focus is on substantive positive obligations to prevent as well as on procedural positive obligations to investigate, prosecute, and punish. Positive obligations are obviously important: they require States to take effective measures to prevent and suppress certain conduct and provide remedies for harm. Without them, negative obligations would be ineffective.617 If the harm occurs, continues, or is not remedied, States may incur responsibility for failing to fulfil their obligations of due diligence. However, as evidenced by the Bosnian Genocide case, a breach of a positive obligation to prevent will lead to a ‘lighter’ form of responsibility. I am not arguing that the standard for complicity should necessarily be lower; the gravity of this legal label largely warrants a high threshold. But perhaps negative obligations, including a prohibition of complicity, are less appealing to States, precisely because negative obligations do not permit a balancing of interests, and do not depend on whether or not the State acted diligently.618 Another explanation could thus be that States prefer positive obligations over negative ones. This would not only explain why the complicity rule cited in the ILC’s Commentary to the DACAH is limited to inter-State constellations, but also why the DACAH do not contain a reference to the non-assistance rule reflected in Article 41(2) ASR, which captures contributions below the level of complicity too. In their research on States’ responses to modern slavery, Webb and Garciandia have also recognised that while positive obligations are rightly front and centre in States’ efforts to address this phenomenon and hold NSAs to account, the focus on positive obligations often overlooks the responsibility of States for their own involvement.619 These findings could perhaps be applied to (other) international crimes and serious human rights violations too. I have not been able to ascertain to what extent this is so (or not) in the context of the DACAH, and this would also go beyond the scope and the methodology of this research. But it must be born in mind that any multilateral treaty which codifies obligations for States will always be the outcome of a diverse range of (competing) interests, not lastly 617 See also Milanovic (2011) 216, arguing that procedural positive obligations, i.e., to investigate, prosecute, and punish, ‘exist solely to make the state’s negative obligations truly effective’. [Emphasis in original] 618 Cf Milanovic (2021) 1370, suggesting that negative obligations ‘may be less contested than more onerous positive duties with regard to the conduct of third parties’. Cf also Seibert-Fohr (2017) 682, proposing a standard of due diligence for when States contributed to (but did not directly commit) the principal violation. 619 P Webb and R Garciandia, ‘State Responsibility for Modern Slavery: Uncovering and Bridging the Gap’ (2019) 68 International and Comparative Law Quarterly 539, 540-541. PROEF PS Joelle Trampert.job_08/28/2024_57B 115 those of powerful States who do not wish to expose themselves to the risk of litigation and potential subsequent liability. This will likely be no different for an envisaged treaty on crimes against humanity, of which States are now in charge. 3.3.4. The obligation to establish liability of legal persons Despite the DACAH’s shortcomings (namely, the limitation of complicity to inter-State constellations and the focus on positive obligations to prevent to the exclusion of a non-assistance rule addressing State conduct below the level of complicity), there is another relevant rule in the DACAH that is a positive and progressive addition. In the draft Article on the duty to criminalise crimes against humanity and to criminalise other punishable acts (i.e., to include other modes of liability) under national law,620 the ILC included in draft Article 6(8) the liability of legal persons: Article 6 Criminalization under national law 1. Each State shall take the necessary measures to ensure that crimes against humanity constitute offences under its criminal law. 2. Each State shall take the necessary measures to ensure that the following acts are offences under its criminal law: (a) committing a crime against humanity; (b) attempting to commit such a crime; and (c) ordering, soliciting, inducing, aiding, abetting or otherwise assisting in or contributing to the commission or attempted commission of such a crime. (…) 8. Subject to the provisions of its national law, each State shall take measures, where appropriate, to establish the liability of legal persons for the offences referred to in this draft article. Subject to the legal principles of the State, such liability of legal persons may be criminal, civil or administrative. The duty to establish the liability of legal persons, with also covers corporate actors, fits within the broader business and human rights debate and increasing attention for corporate involvement in international crimes.621 As noted above, the Torture Convention could be understood to include a duty to criminalise, regulate, and investigate corporate conduct too, namely in the situation where a company domiciled or operating in a State party’s jurisdiction exports inherently abusive items to another State. By providing the principal actor with the means to act, that company could be complicit in torture or 620 For a discussion of the provision in full, see E van Sliedregt, ‘Criminalization of Crimes Against Humanity under National Law’ (2018) 16(4) Journal of International Criminal Justice 729. 621 See e.g. A De Tomasso, Corporate Liability and International Criminal Law (Routledge 2023). PROEF PS Joelle Trampert.job_08/28/2024_58A 116 other ill-treatment, which the home State would then be obliged to investigate and prosecute.622 According to the ILC, a future treaty for crimes against humanity should apparently make such a duty more explicit. The proposed obligation does leave States a fair amount of leeway: States must take measures to establish the liability of legal persons where appropriate, and that liability may be criminal, civil or administrative. Still, I agree with Van Sliedregt that the express inclusion of legal persons in a future crimes against humanity convention would be ‘a welcome addition’,623 and, as she puts it, that draft Article 6(8) DACAH ‘can have the role of ‘nudging’ the law’ in the direction of a more comprehensive accountability regime while permitting differences between national jurisdictions.624 3.4. Interim conclusion The Bosnian Genocide case is one of the few judgements concerning State responsibility for complicity under international law and remains instrumental for our understanding of responsibility for complicity in general and for complicity in genocide in particular. In distinguishing complicity in genocide from a failure to prevent it, the ICJ held that complicity only arises when it is proven that the assisting State was fully aware of the principal actor’s genocidal intent. For a breach of the obligation to prevent, constructive knowledge of the risk suffices. The ICJ’s interpretation of knowledge here is in line with the knowledge standards for the general complicity rule. However, its finding that Serbia must have known of the serious risk sits uneasily beside its conclusion that there was no proof of awareness of the plan to commit genocide. Moreover, the fact that the genocide lasted four days and thus qualified as a continuing serious breach of a jus cogens norm raises the question why the ICJ did not only presume Serbia’s knowledge of the risk, but also of the commission of genocide, once it had started. Serbia’s knowledge of the risk and its continued assistance despite that risk has led scholars to criticise the ICJ’s conclusion that Serbia was responsible for failing to fulfil its obligation to prevent genocide despite having the capacity to intervene. Indeed, Serbia may not have been complicit in the genocide, but the Serbian authorities had still materially facilitated it. This is not reflected in the ICJ’s holding on Serbia’s responsibility at all. As Trapp and Seibert-Fohr have noted, there is a real and important difference between contributions that do not amount to complicity proper, versus a mere failure to adopt and implement measures to prevent genocide from being committed. A(n) (implicit, primary) rule which would capture this level of involvement would allow responsibility to be assigned on that basis. The prohibition of refoulement is such a rule. Complicity and the principle of non-refoulement are functionally similar, and the rationale for these rules is virtually the same: States must not do by another what they cannot do by themselves. The differences relate to the element of knowledge and the nature of responsibility. Whereas responsibility for complicity only follows if the principal violation 622 See again Articles 6 and 7 CAT and Pollard (2005) 354 and 364. 623 Van Sliedregt (2018) 745. 624 Id, 749. PROEF PS Joelle Trampert.job_08/28/2024_58B 117 actually occurred, responsibility for transferring an individual despite the real and foreseeable risk of torture is triggered as soon as the individual is exposed to the risk, regardless of whether or not the torture is ever inflicted. The prohibition of refoulement thus has a wide protective scope, but it only addresses one specific type of conduct. Many types of conduct can assist in the commission of torture, from sharing evidence or other information, granting overflight or landing rights, to authorising exports of abusive goods. Despite no authoritative ruling to date, the Torture Convention can be understood to include a prohibition of complicity in torture. However, like other human rights treaties, some obligations in the Torture Convention are dependent on the victim’s presence in the State’s jurisdiction. The CmAT has found that States can incur responsibility for acts of ill-treatment committed by NSAs with the awareness and in the presence (i.e., with the consent or acquiescence) of State officials, but it has refused to make any findings regarding allegations of a State party’s complicity in torture committed by another State’s officials outside the assisting State’s borders. Thus, while State responsibility for complicity in torture can be assigned under the Torture Convention, it might be limited by the assisting State’s jurisdiction over the victim. Regardless of the location of the victim, however, States always have a duty to criminalise complicity, and must investigate and prosecute potentially complicit actors when they are within the State’s jurisdiction. The DACAH provide an overview of the existing obligations and lex ferenda on the part of States concerning a less regulated category of international crimes, namely, crimes against humanity. The DACAH in particular confirm that the prohibition of committing crimes against humanity by the State automatically implies a prohibition of complicity too. This negative obligation is inherent in the general prohibition of breaching the obligation itself. Two points must be noted. First, the ILC has limited complicity in crimes against humanity to inter-State assistance, despite international custom having evolved since 2001 and the ICJ having found in 2007 that States can incur responsibility for complicity in an international crime committed by an NSA. Second, the ILC has devoted significantly more attention to positive obligations of prevention than to (negative) prohibitions and assistance. To some extent, this makes sense: as the DACAH lay the groundwork for a ‘prevention convention’, it is logical that the emphasis is on obligations to prevent and punish. Complicity is also a well-established basis for responsibility under general international law, and perhaps for this reason further elaboration was not considered necessary. But another explanation could be that there is a preference for positive obligations of due diligence over (stricter) negative obligations of (total) restraint. Overall, the DACAH are an important development in international law, as they present a wide range of positive obligations and an explicit and absolute prohibition of refoulement. The additional obligation to establish liability of legal persons is also significant, not just for what this might mean for corporate accountability, but also in terms of the obligations that States have in relation to corporations operating within their jurisdiction which might be involved in crimes against humanity, including where the crimes are committed abroad. PROEF PS Joelle Trampert.job_08/28/2024_59A PROEF PS Joelle Trampert.job_08/28/2024_59B 119 CHAPTER 4. THE 1949 GENEVA CONVENTIONS AND THE ARMS TRADE TREATY Introduction This Chapter examines two more legal regimes which contain rules relevant to State complicity in and other contributions to the commission of international crimes and serious human rights violations: the 1949 Geneva Conventions and the ATT. IHL, or the law of armed conflict, is largely codified in the four Geneva Conventions of 1949, which were adopted one year after the Genocide Convention. IHL sets the rules that apply to States and NSAs which are a party to an armed conflict, but one rule in particular also applies to third States: the obligation to ensure respect for IHL (4.1). Most armed conflicts, past and present, are fuelled and exacerbated by third States supporting a party to the conflict. This support can take various forms, ranging from the provision of arms or other goods to military training or intelligence sharing.625 Whether or not this is in compliance with the obligation to ensure respect for IHL, will depend on the nature of the assistance and on its end-use. Because anti-personnel mines, chemical weapons, and cluster munitions are inherently indiscriminate, the supply thereof by third States is illegal by default. Conventional arms are not prohibited per se, but are not unregulated either, and the transfer of these weapons is covered by the ATT. Adopted in 2013, the ATT prohibits States from authorising the transfer of arms if they would be used to commit international crimes or if there is an ‘overriding risk’ that they could be used to commit or facilitate serious violations of IHL or IHRL (4.2). The ATT is narrower in scope than the duty to ensure respect for IHL in terms of subject matter; if the assistance consists of anything but goods explicitly covered, the ATT will not apply, but IHL will. Conversely, if a State party to the ATT exports arms outside the context of an armed conflict, IHL will not apply, but the ATT will. After discussing the relevant rules in these regimes and how a breach thereof relates to complicity, a final Section provides an interim conclusion (4.3). 4.1. The 1949 Geneva Conventions After briefly noting the content and scope of the overarching obligation to ensure respect for IHL (4.1.1), this Section focuses on the prohibition of assistance in violations of IHL (4.1.2). The final paragraph discusses an additional obligation implicit in the obligation to ensure respect for IHL (4.1.3). 625 Whether or not the supporting State becomes a party to the conflict depends on the facts of the case, but in general and for the purpose of this study, I assume that it does not. See on this M Milanovic, ‘The International Law of Intelligence Sharing During Military Operations’ in R Buchan and I Navarrete (eds) Research Handbook on Intelligence and International Law (Edward Elgar, forthcoming) available at SSRN via <https://ssrn.com/abstract=4438549> at 3-8 or N Verlinden, “Are We at War?” State Support to Parties in Armed Conflict: Consequences under Jus in Bello, Jus ad Bellum and Neutrality Law (diss. KU Leuven 2019). PROEF PS Joelle Trampert.job_08/28/2024_60A 120 4.1.1. The overarching obligation to ensure respect for IHL Article 1 common to the four Geneva Conventions (CA1) stipulates that the ‘High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.’626 The undertaking to respect the Geneva Conventions is nothing new, as it simply reiterates the obligation to comply with the conventional and customary obligations of IHL.627 The undertaking to ensure respect for IHL is more interesting, as it does not only apply for States which are party to an armed conflict, but for all States, including those not party to the conflict.628 For this Chapter, the focus is on the latter.629 Just as with Article I of the Genocide Convention, the obligations in CA1 are not limited by States’ territory or jurisdiction, which means that States which are not party to the conflict are also bound by the overarching obligation to ensure respect for IHL. This is supported by the wording of CA1: States are obliged to ensure respect for IHL in all circumstances, including in all locations.630 In its updated Commentaries to Geneva Conventions I-III, the ICRC draws a distinction between the obligation to ensure respect by States’ own armed forces and other persons or groups whose conduct is attributable to them under the law of State responsibility; by the whole population over which a State exercises authority; and by others, i.e., parties to the conflict.631 The first two categories largely correspond to the so-called internal compliance dimension of the obligation to ensure respect; the latter to the external compliance dimension, as the parties to the conflict are outside the State’s jurisdiction.632 The obligation to ensure respect for IHL by the State’s own forces and other actors whose conduct is attributable to the State needs no further explanation here.633 The obligation to ensure respect for IHL by the whole 626 See also Article 1(1) AP I and Article 1(1) AP III. 627 See K Dörmann and J Serralvo, ‘Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations’ (2014) 96(895/896) International Review of the Red Cross 707, 708, R Geiß, ‘The Obligation to Respect and to Ensure Respect for the Conventions’ in A Clapham, P Gaeta, M Sassòli (eds) The 1949 Geneva Conventions: A Commentary (OUP 2015) 117, and ICRC Commentary to Geneva Convention (GC) III (2020) paras 159 and 176, referring also to the principle of pacta sunt servanda as codified in Article 26 VCLT. 628 See ICRC Commentary to GC III (2020) paras 152 and 164. 629 The obligations and the responsibility of belligerent States are excluded from this Chapter. For this reason, the rules governing the transfer of prisoners of war and civilians respectively from one State to another in the context of an international armed conflict are not addressed (Article 12 GC III and Articles 45 and 49 GC IV). The prohibition of refoulement in IHRL is examined in Chapters 3 and 5. On the prohibition of refoulement in IHL, see C Droege, ‘Transfers of Detainees: Legal Framework, Non-Refoulement and Contemporary Challenges’ (2008) 90(871) International Review of the Red Cross 669, and R Ziegler, ‘Non-Refoulement between ‘Common Article 1’ and ‘Common Article 3’’ in D Cantor and JF Durieux (eds) Refuge from Inhumanity? War Refugees and International Humanitarian Law (Brill 2014). 630 See also Geiß (2015b) 132 and Lanovoy (2016) 208. 631 ICRC Commentary to GC III (2020) under E (see headings above paras 176, 183, 186, and para. 186.) 632 Geiß (2015b) 117 and further. The (implied) obligation to ensure respect for IHL by others which are not party to the conflict is discussed in 4.1.3 below. 633 See ICRC Commentary to GC III (2020) para. 177 and JM Henckaerts and L Doswald-Beck, Customary International Humanitarian Law, Volume 1: Rules (CUP 2005) 495 and further (Rule 139) and 530 and further (Rule 149). The ICRC Commentary specifies that this includes conduct of other persons or groups acting on the State’s behalf, such as, in some cases, private military and security companies. See again para. 177. See further on this H Tonkin, ‘Common Article 1: A Minimum Yardstick for Regulating Private Military and Security Companies’ (2009) 22(4) Leiden Journal of International Law 779. PROEF PS Joelle Trampert.job_08/28/2024_60B 121 population over which the State exercises authority, i.e., jurisdiction, is broad, in that the State is required to suppress not only violations of IHL, but also, as Geiß has noted, ‘lower-level interferences, for example to stop persons under their authority from interfering with medical aid deliveries to the wounded and sick.’634 Regarding the obligation to ensure respect by others and the external compliance dimension, the ICRC’s Commentary to Geneva Convention III explains that: This duty to ensure respect by others comprises both a negative and a positive obligation. Under the negative obligation, High Contracting Parties may neither encourage, nor aid or assist in violations of the Conventions by Parties to a conflict. Under the positive obligation, they must do everything reasonably in their power to prevent and bring such violations to an end. This external dimension of the obligation to ensure respect for the Conventions goes beyond the principle of pacta sunt servanda. 635 The ICJ first pronounced on the obligation not to encourage violations of IHL in its judgement in the case concerning Military and Paramilitary Activities in and against Nicaragua, where it held that the US had ‘an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions.’636 It did not make a comparable statement on the obligation not to assist in violations of IHL, as the support of the US to the Contras was dealt with as part of the submissions on the US’ breach of the principle of non-intervention instead of as a breach of any non-assistance rule.637 In its judgement in the case concerning Armed Activities on the Territory of the Congo, the ICJ similarly found that the military, logistic, economic, and financial support of the Republic of Uganda to irregular armed forces in the Democratic Republic of the Congo amounted to a breach of the principle of non-intervention, but again did not rule on Uganda’s potential responsibility for assisting the commission of violations of IHL.638 There is nevertheless little debate that this negative obligation is implicit in CA1.639 As the ICRC’s Commentary also states, it would be contradictory if CA1 obliged States to ensure respect for IHL by their own armed 634 Geiß (2015b) 118. See also, especially on the regulation of private actors, C Drummond, ‘Ensuring Respect for IHL by, and in Relation to the Conduct of, Private Actors’ in E Massingham and A McConnachie (eds) Ensuring Respect for International Humanitarian Law (Routledge 2021) 65. 635 ICRC Commentary to GC III (2020) para. 187. [Emphasis mine] See also paras 190-191 and Henckaerts and Doswald-Beck (2005) 509 and further (Rule 144). 636 ICJ Nicaragua para. 220. See also paras 255-256. For critique, see Separate Opinion of Judge Ago, para. 6. 637 ICJ Nicaragua para. 242. See also Milanovic (2021) 1328, referencing paras 195, 205, 228, and 241. 638 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgement, ICJ Reports 2005, 168 (ICJ, 19 December 2005) paras 160-161 and para. 345, subpara. 1 of the operative part. 639 Prior to the publication of the ICRC’s first updated Commentary to GC I in 2016, some scholars had already found CA1 to contain a prohibition of assistance in the commission of violations of IHL by others, see e.g. M Sassòli, ‘State Responsibility for Violations of International Humanitarian Law’ (2002) 84(846) International Review of the Red Cross 401, 413; Aust (2011) 385; and Dörmann and Serralvo (2014) 727, also linking it to Article 16 ASR. See however V Robson, ‘The Common Approach to Article 1: The Scope of Each State’s Obligation to Ensure Respect for the Geneva Conventions’ (2020) 25(1) Journal of Conflict and Security Law 101, 111, but cf C Wiesener and A Kjeldgaard-Pedersen, ‘Ensuring Respect by Partners: Revisiting the Debate on Common Article 1’ (2022) 27(2) Journal of Conflict and Security Law 135, 154-155. See also Milanovic (2021) 1325-1326. PROEF PS Joelle Trampert.job_08/28/2024_61A 122 forces, but allowed them to contribute to violations by other parties to a conflict.640 In support of the prohibition of assistance, the Commentary refers to Article 16 ASR,641 but notes that ‘[CA1] and the rules on State responsibility (…) operate at different levels. The obligation to ensure respect for [IHL] is an autonomous primary obligation that imposes more stringent conditions than those required for the secondary rules on State responsibility for aiding or assisting.’642 These ‘more stringent’ conditions, how CA1 operates in comparison to the general complicity rule, and what this means for the assisting State’s responsibility, are discussed in 4.1.2 below. The Commentary specifies that ‘[f]inancial, material or other support in the knowledge that such support will be used to commit violations of humanitarian law would therefore violate [CA1], even though it may not amount to [complicity].’643 The prohibition of assistance in CA1 is thus not a complicity rule proper, but regulates conduct that contributes to the commission of violations of IHL. The Commentary also specifically mentions that the negative obligation under CA1 prohibits States ‘from transferring weapons if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the Conventions.’644 The ICRC’s Commentary then refers to ‘additional negative obligations’ in international law, namely the obligations not to recognise a situation created by a serious breach of a jus cogens norm as lawful and not to aid or assist in maintaining that situation as laid down in Article 41(2) ASR. In its advisory opinion in the case concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ emphasised the negative limb of the external dimension of the duty to ensure respect in CA1 and, in the next paragraph, listed the duties for third States included in Article 41 ASR, concluding that all States were ‘under an obligation not to render aid or assistance in maintaining the situation created by [the wall’s] construction.’645 According to the ICRC, this duty not to assist the maintenance of the situation resulting from serious breaches of jus cogens can be seen ‘as a corollary of the duty neither to encourage nor to aid or assist in the commission of violations of the Conventions.’646 The word ‘commission’ has been italicised in the Commentary in order to emphasise that CA1 applies before or during the commission of the IHL violation, whereas the non-assistance rule in the aggravated responsibility regime applies after the serious breach has (initially) been committed. The more controversial part of the external dimension of the obligation to ensure respect is the positive obligation to prevent violations or bring violations to an end.647 However, questions on the 640 ICRC Commentary to GC III (2020) para. 191. 641 Id, para. 192. 642 Id, para. 193. 643 Id. 644 Id, para. 195. See also Sassòli (2002) 413. 645 ICJ Wall paras 158-159. For critique, see Separate Opinion of Judge Kooijmans, paras 46-50, also referring to F Kalshoven, ‘The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit’ (1999) 2 Yearbook of International Humanitarian Law 3. 646 ICRC Commentary to GC III (2020) para. 196. 647 Id, paras 197 and further, especially para. 202. See also R Geiß, ‘Common Article 1 of the Geneva Conventions – Scope and Content of the Obligation to ‘Ensure Respect’ – ‘Narrow but Deep’ or ‘Wide and Shallow’ in H Krieger (ed.) Inducing Compliance with International Humanitarian Law – Lessons from the PROEF PS Joelle Trampert.job_08/28/2024_61B 123 content, scope, and even existence of this obligation do not have any bearing on the existence of the negative limb.648 The positive obligation is one of due diligence and it exists alongside the obligations to refrain from assisting and encouraging violations of IHL, which are obviously obligations of result.649 As the ICRC’s Commentary notes, positive duties are ‘particularly strong in the case of a partner in a joint operation, even more so as this case is closely related to the negative [duties].’650 Indeed, when a State finances, equips, arms or otherwise assists the armed forces of a party to the conflict, this ‘places it in a unique position to influence the behaviour of those forces, and thus to ensure respect for [IHL].’651 This explains why the obligations implicit in CA1 are often mentioned in tandem:652 when a State is in a position of influence through, for example, its provision of assistance, it must also encourage the party to the conflict receiving the assistance to comply with IHL. The ICRC’s Commentary also draws a parallel between the positive obligations under CA1 and the duty to prevent genocide under Article I of the Genocide Convention.653 In the Bosnian Genocide case, the ICJ established Serbia’s responsibility for a failure to prevent the genocide, after concluding that there was insufficient proof of Serbia’s knowledge for the purpose of complicity. In his commentary to CA1, Geiß has written that ‘the ICJ held Serbia responsible on the basis of a broader standard of complicity, which it derived from the general obligation to prevent genocide contained in Article I of the Genocide Convention.’654 Rather, the ICJ held Serbia responsible on the basis of a broader form of involvement, which it indeed took from the obligation to prevent, but interpreted as an obligation to suppress or intervene. As discussed in Chapter 3 however, the ICJ could have held Serbia responsible for assisting the genocide, on the basis of a more fine-tuned understanding of the duties implicit in the obligation to prevent. Had the ICJ interpreted the Genocide Convention to include a prohibition of assistance similar to the one implicit in the obligation to ensure respect for IHL in CA1, the outcome of the Bosnian Genocide case may have been different. 4.1.2. The prohibition of assistance in violations of IHL African Great Lakes Region (CUP 2015) 421, and M Zwanenburg, ‘The “External Element” of the Obligation to Ensure Respect for the Geneva Conventions: A Matter of Treaty Interpretation’ (2021) 97 International Law Studies 621. 648 See also Milanovic (2021) 1324-1326. 649 ICRC Commentary to GC III (2020) para. 198. 650 Id, para. 200. 651 Id. 652 See again Rule 144 of the ICRC Study on CIHL. Note that Rule 144 does not mention the prohibition of assistance in the rule’s text, although it does in the context below. See also the Council of the EU, User’s Guide to Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment 12189/19, 16 September 2019, para. 2.13, which does mention the prohibition of assistance. 653 ICRC Commentary to GC III (2020) para. 199. See also Geiß (2015b) 120-122 and 127. 654 Id, 131-132. PROEF PS Joelle Trampert.job_08/28/2024_62A 124 This paragraph discusses the conditions of the prohibition of assistance in violations of IHL and compares responsibility for a breach of this negative obligation to responsibility for failing to prevent the violation on the one hand and for complicity in that violation on the other hand. 4.1.2.1. The conditions of the prohibition of assistance What counts as assistance is fairly open-ended. The ICRC’s Commentary refers to ‘financial, material or other support’, which covers everything from arming to otherwise equipping, funding, training, and intelligence sharing.655 Arms transfers are explicitly mentioned.656 The provision of so-called ‘non-lethal assistance’ to non-State armed groups, which the Netherlands did for certain non-State armed groups in Syria between 2015 and 2018 (the NLA-programme), is within the scope of assistance too.657 Support will most often be active conduct, but assistance by omission is possible too. Encouragement is not a form of assistance, but another type of conduct which is prohibited under the negative limb of the external dimension of the duty to ensure respect for IHL. In other words, the prohibition of encouragement exists in parallel with the prohibition of assistance.658 If a State encourages a party to an armed conflict to commit serious violations of IHL, but does not in any way assist in the commission of those violations, it will incur direct responsibility for breaching the prohibition of encouragement and the duty to ensure respect for IHL. It will not incur (derived) responsibility for complicity in that violation, as complicity only arises pursuant to an act of assistance. No specific causality standard for the prohibition of assistance in CA1 has been articulated by the ICJ, the ICRC, or another authority.659 Given that the general complicity rule requires the contribution to be ‘significant’, it is unlikely that the standard for prohibition of assistance will be stricter; at most, it will be the same.660 Ruys and Ferro have concluded that assistance which has a ‘more-than-minimal effect on the commission of the wrongful act’ by the recipient is captured by the general complicity rule as laid down in Article 16 ASR, and ‘therefore’ also by the prohibition of assistance in CA1.661 Furthermore, even if assistance to a NSA ‘was one or more steps removed from the actual violations’, it can still ‘have genuinely facilitated [the violations] by increasing the armed group’s operational capacity and performance’.662 Indeed, while assistance might not have significantly contributed to any specific serious violations of IHL, it may still have bolstered the recipients’ ability to operate, and thus to commit the principal violations. The nature of the assistance will also matter, 655 ICRC Commentary to GC III (2020) para. 193. See also para. 200. 656 Id, para. 195. 657 See on this Ruys and Ferro (2021). 658 This can also be inferred from the wording of the ICRC Commentary: ‘In addition, …’. See para. 192. 659 See also Milanovic (2021) 1331. 660 Id, 1332, for this argument in relation to knowledge. See also Aust (2015) 454. 661 Ruys and Ferro (2021) 350. 662 Id, 360. PROEF PS Joelle Trampert.job_08/28/2024_62B 125 and arms and other military goods in particular will contribute to the commission of violations of IHL, more than, say, humanitarian aid. As for the knowledge element, the ICRC’s Commentary makes clear that in the event of multinational operations or in the context of arms transfers, the negative limb of CA1 requires States to refrain from participating in an operation or authorising an arms transfer ‘if there is an expectation, based on facts or knowledge of past patterns’ that the operation would violate IHL, or that such weapons would be used to violate IHL.663 Participation in a military operation is a more direct form of support, and States are obliged to ‘opt out’ as soon as they expect, given the facts or ‘past patterns’, that the operation would breach IHL. Likewise, once States expect that arms would be used contrary to IHL, they are prohibited from transferring arms. Both previously discussed objects of knowledge, namely, (ii) knowledge of the principal violation and (iii) knowledge of the nexus, can be identified here: ‘facts’ or ‘knowledge of past patterns’ relate to the principal actor’s general behaviour, which in turn informs the foreseeability and probability of further violations.664 Knowledge that the arms would be used to violate IHL also denotes knowledge of the link between the arms in question and the principal violation. Referring to the ILC’s Commentary to Article 16 ASR, which specifies that the assisting State must have intended to facilitate the occurrence of the principal wrongful act,665 the ICRC’s Commentary to CA1 states that the ‘subjective element of “intent” is unnecessary (…) for the purposes of [CA1]. (…) [CA1] does not tolerate that a State would knowingly contribute to violations of the Conventions by a Party to a conflict, whatever its intentions may be.’666 In the next paragraph, the ICRC’s Commentary adds that ‘[f]inancial, material or other support in the knowledge that such support will be used to commit violations of humanitarian law would therefore violate [CA1]’.667 As seen in Chapter 2, the standard of knowledge under heading (iii) is met when the assisting State has near-certain knowledge of how the assistance will be used and consciously decides to (continue to) assist anyway. In this respect, the knowledge standards of the rules reflected in Article 16 ASR and CA1 respectively do not substantially diverge, contrary to what the ICRC’s Commentary suggests.668 Moreover, CA1 seemingly requires that the assisting State has knowledge that its support will or would be used to commit violations of IHL, instead of that it could or might, thereby designating a high(er) degree of certainty.669 663 ICRC Commentary to GC III (2020) paras 194-195. [Emphasis mine] 664 See ICJ Nicaragua para. 256, and Seibert-Fohr (2017) 689 and Milanovic (2021) 1328. See also para. 116. 665 ILC Commentary to Article 16 ASR para. 5. 666 ICRC Commentary to GC III (2020) para. 192. 667 Id, para. 193. [Emphasis mine] Cf para. 195: ‘[CA1 requires States] to refrain from transferring weapons if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the Conventions.’ 668 See also Heller and Trabucco (2022) 267. 669 See the User’s Guide to the EU Common Position para. 2.7, stating that the combination of the terms ‘clear risk’ and ‘might’ in Criterion Two of the EU Common Position indicates that ‘a lower burden of evidence than a clear risk that the military technology or equipment will be used for internal repression’ is required. [Emphasis mine] PROEF PS Joelle Trampert.job_08/28/2024_63A 126 Having said that, the ICRC’s Commentary has also noted that States are required to conduct ‘an appropriate assessment prior to any arms transfer’,670 which is more than the general complicity rule requires and closer to the requirements under the ATT. Moreover, the prohibition of assistance does not exist in isolation, but operates alongside the positive limb of the obligation to ensure respect for IHL, which ‘includes an obligation to prevent violations when there is a foreseeable risk that they will be committed and to prevent further violations in case they have already occurred.’671 Here, the object of knowledge is the risk of violations, which means that States which (are about to) transfer arms will be under a dual obligation not to assist violations and to prevent them.672 The State’s decision not to modify its behaviour and to continue transferring arms despite the foreseeable risk of future or further violations will then inform the knowledge element of the prohibition of assistance, and eventually, of the general complicity rule too. It should also be recalled that if the violations of IHL qualify as serious breaches of jus cogens norms which are continuing in character, the same logic of the non-assistance rule in Article 41(2) ASR would apply here: it would be inconceivable that the State would not be on notice.673 Milanovic has argued that for serious violations of IHL, which rise to the level of grave breaches or war crimes, it would be justified if the degree of knowledge required to establish a breach of the prohibition of assistance in CA1 was lower.674 He suggests that the knowledge element ‘ultimately might best be conceptualized as a sliding scale, depending on the importance of the IHL rule that is implicated.’675 As Milanovic also notes, this is exactly what the ILC meant to do with respect to the non-assistance rule in Article 41(2) ASR.676 But even if the standard under CA1 would be lower, this does not mean that the State would incur responsibility for complicity in those violations on the basis of this lower standard; responsibility for complicity is assigned when the (general) conditions for complicity are met. Rather, the prohibition of assistance captures a category of State conduct below the level of complicity, and thus provides a basis for responsibility which adequately reflects what the State in question did, namely, assist in the commission of a (serious) violation of IHL, instead of (merely) fail to diligently prevent it. 4.1.2.2. Responsibility for breaching the prohibition of assistance How do CA1 and the notion of complicity interrelate? For Aust, the prohibition of assistance in CA1 is a rule of lex specialis in relation to the general complicity rule, and is ‘a valuable addition to the rules 670 ICRC Commentary to GC III (2020) para. 195, fn 84, with reference to Dörmann and Serralvo (2014) 732–735. 671 Id, para. 197. 672 Cf Court of Appeal Stichting Oxfam Novib para 3.12, highlighting the positive limb. 673 Id, para 196. 674 Milanovic (2021) 1333-1334. 675 Id, 1333. 676 Id, 1334. PROEF PS Joelle Trampert.job_08/28/2024_63B 127 on complicity’.677 Lanovoy seems to agree, and has found that ‘the general rule on the responsibility for complicity pursuant to Article 16 [ASR] has little role to play in the context of jus in bello’, as ‘most cases of potential complicity (…) would be effectively covered by [the broad understanding of CA1]’.678 According to Ferro, the non-assistance rule in CA1 is a ‘specific affirmation of secondary state responsibility as set out in Article 16 [ASR]’,679 and Milanovic has qualified it as an ‘IHL-specific complicity rule’.680 First, a prohibition of complicity is implied in CA1, as is also presupposed by the general complicity rule. To recall: inherent in the obligation to refrain from committing X is also the obligation to refrain from complicity in X. Second, the argument can certainly be made that IHL includes a regime-specific complicity rule, which has different or less stringent conditions than the general complicity rule. But as there is no information to the contrary, responsibility for complicity in violations of IHL will be assigned when the conditions for complicity in the law of State responsibility are met. The added value of the prohibition of assistance in CA1 is that it also captures State conduct which might not qualify as complicity proper, and States can incur responsibility for a breach of this prohibition on its own terms.681 The ICRC’s Commentary emphasises that ‘[w]hat is at stake is more than aid or assistance to violations of the [regular, JT] rules of international law but concerns aid or assistance to violations of rules whose observance the High Contracting Parties have specifically undertaken to respect and ensure respect for.’682 At the same time, and given the gravity of a finding of responsibility for complicity, and especially complicity in a serious violation of IHL, State conduct that qualifies as such deserves this legal label. When the conditions for complicity are not met, the prohibition of assistance offers another basis for responsibility, and should be preferred over framing the State’s conduct as a failure to fulfil the obligation to prevent alone. If a State’s assistance significantly contributed to the commission of the violations and meets the required degree of knowledge for complicity, then it will incur derived responsibility for complicity. For some authors, one of the main advantages of CA1 over the general complicity rule is that it covers State assistance in the commission of violations by NSAs, whereas Article 16 ASR does not.683 As I have argued in Chapter 2, the general, customary complicity rule which Article 16 ASR reflects does apply to State-NSA constellations, and the fact that NSAs are also norm-addressees of IHL is further evidence of this. For Hathaway and others, the advantage of CA1 is that it can prevent an accountability gap when States do not incur direct responsibility for violations committed by NSAs 677 Aust (2011) 389 and HP Aust, ‘Complicity in Violations of International Humanitarian Law’ in H Krieger (ed.) Inducing Compliance with International Humanitarian Law – Lessons from the African Great Lakes Region (CUP 2015) 458. See also Geiß (2015b) 131. 678 Lanovoy (2016) 208. 679 Ferro (2019) 15. 680 Milanovic (2021) 1327. 681 See also Seibert-Fohr (2017) 688-690, and 699. 682 ICRC Commentary to GC III, para 193. 683 See e.g. Milanovic (2021) 1323 and O Hathaway, E Chertoff, L Dominguez, Z Manfredi and P Tzeng, ‘Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors’ (2017) 95(3) Texas Law Review 539. PROEF PS Joelle Trampert.job_08/28/2024_64A 128 with State support that does not meet the threshold for attribution of conduct of NSAs to the State.684 They have argued that the high thresholds create ‘perverse incentives’ for States to not only make use of NSAs during armed conflict, but also to not exercise too much control over them, as more control increases the risk of attribution and thus, ultimately, responsibility. For example, States might supply weapons to a non-State armed group, but prefer to offer little to no training in how to use them, in order to avoid any hint of control.685 Here, the due diligence obligations of prevention and suppression as well as the prohibition of assistance provide an independent basis for responsibility; the State will not be responsible for the principal violation of IHL due to its control or support, but will be responsible for assisting it. This is similar to the ICJ’s approach in the Nicaragua case: while the US support for the Contras was substantial, it did not amount to ‘effective control of the military or paramilitary operations in the course of which the alleged violations were committed.’686 However, the US was found responsible for breaching certain primary rules, including the obligation to refrain from encouraging the commission of violations of IHL. The ICJ held that the publication and dissemination of a manual on psychological warfare by the US amounted to a breach of this obligation.687 This is an example of how the negative obligations which are part of the external dimension of the obligation to ensure respect for IHL can operate as a fall-back category for direct responsibility. Likewise, the prohibition of assistance can operate as a fall-back category for derived responsibility, namely, complicity. 4.1.3. An implied obligation to ensure respect by corporations So far, the focus has been on the external compliance dimension of CA1, which covers assisting State-principal actor constellations where the principal actor is a party to the conflict and is outside the assisting State’s jurisdiction. More remote but no less important are third State-secondary actor constellations where the secondary actor – a private, corporate, actor – is not a party to the conflict and is within the third State’s jurisdiction. The principal actor is a party to the conflict and is outside the third State’s jurisdiction. This constellation can have two variations. In the first variation, company D, domiciled in and operating from State A’s jurisdiction, exports goods to State B, a party to the conflict. State B uses the goods received from company D to commit serious violations of IHL. In the second variation, company D, still domiciled in State A but operating in State B, supports a party to the conflict in State B, either State B or NSA C. State B or NSA C commit serious violations of IHL, to some extent supported by company D. In both scenarios, company D can be said to have facilitated the commission of serious violations of IHL by a party to the conflict. What IHL obligations does State A have, if any, vis-à-vis company D? Company D is not a party to the conflict and is only bound by IHL insofar its 684 Hathaway et al (2017). 685 Id, 562. 686 ICJ Nicaragua para. 115. See also ICJ Bosnian Genocide para. 400. 687 ICJ Nicaragua paras 116 and 256, and operative para. 9. PROEF PS Joelle Trampert.job_08/28/2024_64B 129 conduct is covered by ICL or domestic criminal law.688 The first variation has received a lot of attention in the context of ongoing discussions and litigation concerning arms trade. Besides arms transfers, which can also be a form of direct State assistance, the ICRC’s Commentary is silent on these scenarios, and the second one is entirely absent. It is also often overlooked in the literature. Drummond has brought the matter to our attention, and raised the question if and to what extent the obligation to ensure respect for IHL requires States to regulate corporate actors, especially those operating outside its jurisdiction.689 A textual and a teleological interpretation of CA1 as well as the ICRC’s updated Commentaries allow for the obligation to ensure respect for IHL to include an obligation to regulate corporate conduct in situations where it facilitates the commission of violations of IHL by a party to a conflict abroad. Whether this obligation should be considered part of CA1’s internal or external dimension, and whether a failure to regulate will breach the prohibitions of encouragement or assistance or the obligations to prevent and supress, will depend on the specific circumstances of the case, including the conduct of the corporation and the conduct of the State. As Drummond rightly notes, the prohibition of assisting violations of IHL is not restricted to directly assisting parties to the conflict; it prohibits assistance in violations of IHL by parties to the conflict.690 Thus, besides State A’s obligation to refrain from assisting State B directly and its obligation to take measures within its capacity to bring State B back in compliance with IHL, State A is required to ensure that company D does not facilitate State B, namely, by providing the goods in question. State A’s failure to control or prohibit an export of goods sold by company D may assist violations of IHL committed by State B with the goods of company D.691 688 Drummond (2021) 65. 689 Id, 63. 690 Id, 66 and ICRC Commentary to GC III (2020) para. 187. Drummond also argues that States are obliged to refrain from assisting lower-level interferences (and not only violations), see at 65, 66, and 77. Because this study is focused on (serious) violations, I have not addressed this further. 691 In 2015, NRC Handelsblad reported that Dutch service dogs were used by the Israeli armed forces in a way that was in contravention of IHRL and IHL. The Dutch government claimed that they could not prohibit or control the export, as the dogs were not ‘dual-use’ but ‘civilian’ ‘goods’. According to Palestinian human rights NGO Al-Haq, ‘[t]he dogs represent the means for carrying out a war crime’, and the Netherlands’ ‘failure to regulate Dutch corporate actors (…) may give rise to Dutch state responsibility.’ In an open letter to the government, Al-Haq referred to Geneva Convention IV and the corporate human rights standards in the UNGPs and the OECD Guidelines for Multinational Enterprises. Initially, the government’s position was that it could not do anything to prevent the exports or prevent the abuses, besides drawing the corporation’s attention to aforementioned due diligence standards. But the government did ultimately ‘emphasise [obligations under international law and especially the law of occupation and IHRL] to the Israeli authorities.’ It had also had conversations with the company that supplied ‘about its responsibilities under the OECD Guidelines’. I have not been able to ascertain whether the Netherlands did this because it felt morally and/or politically compelled to do so as a result of all the media attention and parliamentary scrutiny, or because it considered that it was legally obliged to do so on the basis of its obligation to ensure respect for IHL. For the newspaper articles, see L van Nierop, ‘Nederlandse honden in dienst van leger Israël’ NRC Handelsblad, 26 October 2015, available at <https://www.nrc.nl/nieuws/2015/10/26/nederlandse-honden-in-dienst-van-leger-israel-a1412039> and van Nierop, ‘Zijn honden wapens? Ja, als ze bijten’ NRC Handelsblad, 26 October 2015, available at <https://www.nrc.nl/nieuws/2015/10/26/zijn-honden-wapens-ja-als-ze-bijten-1549722-a1268035>. For Al-Haq’s letter, see S Jabarin, General Director of Al-Haq, regarding the export of Dutch service dogs to Israel, 6 November 2015, available at <https://www.alhaq.org/advocacy/6471.html>. For the Dutch government’s statements, see EMJ Ploumen, ‘Brief van de Minister voor Buitenlandse Handel en Ontwikkelinsgsamenwerking’ Kamerstuk 22054 No. 276, 24 June 2016, <https://zoek.officielebekendmakingen.nl/kst-22054-276.html>. PROEF PS Joelle Trampert.job_08/28/2024_65A 130 In that case, State A’s failure to act will be in breach of its obligation to ensure respect of IHL. It is on States to inform themselves of the content and scope of this obligation, and as Drummond has put it, vagueness of the obligation or ignorance of the law is no defence in the case of a breach.692 It is also relevant here that any obligation and responsibility of a State under international law would not necessarily absolve the corporation from any (criminal) responsibility under domestic law.693 Regarding the arms trade, for example, an export licence granted by a State would not mean that the arms company or any of the individuals in charge would not be criminally responsible for facilitating the commission of war crimes: the export might not be deemed illicit under arms control laws, but it might still qualify as complicity under ICL or domestic criminal law.694 As the IHL (and IHRL) obligations of corporations are underregulated, I agree with Drummond that ‘the onus on States to regulate such actors through legislative and enforcement measures is more important than ever’.695 In this context, CA1 could play a more prominent role; 696 not only where States themselves directly contribute to the commission of serious violations of IHL by others, but also where they allow entities within their jurisdiction to contribute to such violations, and even to profit from them. 4.2. The Arms Trade Treaty After setting out the content and scope of the transfer prohibitions (4.2.1), this Section focuses on the element of knowledge and the risk assessment criteria (4.2.2). The final paragraph discusses the relationship between a breach of the ATT and complicity (4.2.3). 4.2.1. The content and scope of the transfer prohibitions The ATT is aimed at establishing ‘the highest possible common international standards for regulating (…) the international trade in conventional arms’ for the purpose of ‘contributing to international and regional peace, security and stability; reducing human suffering; [and] promoting cooperation, transparency and responsible action by States Parties in the international trade in conventional arms’.697 The preamble also reminds us of ‘the legitimate political, security, economic and commercial interests 692 Drummond (2021) 68. 693 See M Aksenova, ‘Arms Trade and Weapons Export Control’ in M Gibney, G Erdem Türkelli, M Krajewski, W Vandenhole (eds) The Routledge Handbook on Extraterritorial Human Rights Obligations (Routledge 2022) 386 and 388. 694 See on this also L Bryk and M Saage-Maaß, ‘Individual Criminal Liability for Arms Exports under the ICC Statute – A Case Study of Arms Exports from Europe to Saudi-led Coalition Members Used in the War in Yemen’ (2019) 17(5) Journal of International Criminal Justice 1117, 1135. 695 Drummond (2021) 78. 696 Cf Aust (2011) 389. 697 See Article 1 ATT. PROEF PS Joelle Trampert.job_08/28/2024_65B 131 of States in the international trade in conventional arms’.698 One of the ATT’s preambular principles refers to the ‘inherent right of all States to individual or collective self-defence’;699 another mentions the obligation to respect and ensure respect for IHL and the obligation to respect and ensure respect for human rights.700 These different objectives represent a certain tension which underlies some obligations in the ATT.701 Still, all things considered, it is a major achievement in that it regulates the trade in conventional arms, which was not the case until a decade ago. Article 2(1) ATT sets out the scope of the treaty by listing the categories of conventional arms covered, with Articles 3 and 4 ATT including ‘ammunition/munitions’ and ‘parts and components’ (referred to as ‘other items’). Article 2(2) ATT specifies that ‘the activities of the international trade’ comprise the export, import, transit, trans-shipment and brokering, which are all referred to as ‘transfer’. The term ‘export’ is left undefined, and it is up to each State whether or not gifts, leases, and loans are within the scope.702 In light of the principle of good faith States will not be able to evade their obligations under the ATT by labelling all transfers as gifts.703 State parties must establish and maintain a national control system in order to implement the provisions of the ATT,704 the most important ones being Articles 6 and 7 ATT.705 These provisions read: Article 6 Prohibitions (…) 2. A State Party shall not authorize any transfer (…) if the transfer would violate its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms. 698 See fourth preambular paragraph to the ATT. See also one of the last preambular paragraphs ‘[a]cknowledging that regulation of the international trade in conventional arms and preventing their diversion should not hamper international cooperation and legitimate trade in materiel, equipment and technology for peaceful purposes’. See also P Holmtom, ‘Article 2: Scope’ in C da Silva and B Wood (eds) The Arms Trade Treaty – Weapons and International Law (Intersentia 2021) 32. 699 See first preambular principle of the ATT. 700 See fifth preambular principle of the ATT. See also Dörmann and Serralvo (2014) 734. 701 See also E Danon, ‘Preamble’ in C da Silva and B Wood (eds) The Arms Trade Treaty – Weapons and International Law (Intersentia 2021) 9-10. 702 S Casey-Maslen, A Clapham, G Giacca, S Parker, The Arms Trade Treaty: A Commentary (OUP 2016) 65-66, concluding that Sates ‘settled for constructive ambiguity in the text’. See the declarations of Liechtenstein and Switzerland, stating that for them, such transfers are included, at <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-8&chapter=26>. 703 Casey-Maslen et al (2016) 246. 704 Article 5(1) ATT obliges States to implement the ATT ‘in a consistent, objective and non-discriminatory manner, bearing in mind the principles referred to in this Treaty’ and Article 5(5) ATT requires States to ‘take measures necessary to implement the provisions (…) in order to have an effective and transparent national control system regulating the transfer of conventional arms’. Regarding the means of implementation, see Article 14 ATT, stipulating that State parties ‘shall take appropriate measures to enforce national laws and regulations that implement the provisions of this Treaty’. States are not obliged to criminalise non-compliance with export control laws, see Casey-Maslen et al (2016) 389-399 and M Lewis, R Mangion and J Sollier, ‘Article 14: Enforcement’ in C da Silva and B Wood (eds) The Arms Trade Treaty – Weapons and International Law (Intersentia 2021) 308-309 and 312 and further. 705 See also Casey-Maslen et al (2016) 178. PROEF PS Joelle Trampert.job_08/28/2024_66A 132 3. A State Party shall not authorize any transfer (…) if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.706 Article 7 Export and Export Assessment 1. If the export is not prohibited under Article 6, each exporting State Party, prior to authorization of the export of conventional arms [or other items] under its jurisdiction and pursuant to its national control system, shall, in an objective and non-discriminatory manner, taking into account relevant factors, including information provided by the importing State (…), assess the potential that the conventional arms or [other] items: (a) would contribute to or undermine peace and security; (b) could be used to: (i) commit or facilitate a serious violation of international humanitarian law; (ii) commit or facilitate a serious violation of international human rights law; (…) 2. The exporting State Party shall also consider whether there are measures that could be undertaken to mitigate risks identified in (a) or (b) in paragraph 1 (…). 3. If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export. (…) 7. If, after an authorization has been granted, an exporting State Party becomes aware of new relevant information, it is encouraged to reassess the authorization after consultations, if appropriate, with the importing State.707 Article 6 ATT dictates when arms transfers are prohibited. Paragraph 3 bans the transfer of arms that would be used in the commission of international crimes, and in order to avoid any gaps in the protection of civilians, this provision lists ‘grave breaches of the Geneva Conventions’, ‘attacks directed against civilian objects or civilians protected as such’, and ‘other war crimes’.708 There may still be a gap under 706 Paragraph 1 prohibits States from authorising arms transfers which would breach obligations under measures adopted by the UN Security Council acting under Chapter VII of the UN Charter, in particular arms embargoes. As such, this provision does not create any new obligations but confirms existing ones. See however C da Silva and P Nevill, ‘Article 6: Prohibitions’ in C da Silva and B Wood (eds) The Arms Trade Treaty – Weapons and International Law (Intersentia 2021) 110. 707 Paragraph 4 requires States to take into account the risk of the arms or items being used to commit or facilitate serious acts of gender based violence or serious acts of violence against women and children. Da Silva and Wood have noted the slightly different wording here: ‘being used’ (present continuous) and ‘serious acts’ (plural). See C da Silva and B Wood, ‘Article 7: Export and Export Assessment’ in C da Silva and B Wood (eds) The Arms Trade Treaty – Weapons and International Law (Intersentia 2021) 168. 708 Casey-Maslen et al (2016) 231. PROEF PS Joelle Trampert.job_08/28/2024_66B 133 Article 6 ATT when the arms would be used to commit violations of the right to life which do not qualify as one of the acts listed in Article 6(3) ATT. Some authors have noted that paragraph 2, which bans transfers that would violate ‘obligations under international agreements’, covers the right to life and the prohibition of torture and other ill-treatment.709 But this provision does not cover rules of international custom.710 Thus, it depends on whether a human rights treaty applies, which largely hinges on whether the authorising State exercises IHRL-jurisdiction over a person (at risk of being) impacted by the transfer. Extraterritorial jurisdiction in IHRL is discussed in the next Chapter, but it can be concluded here that if the authorising State does not have obligations under a human rights treaty regime vis-à-vis the individuals in question, there would be no obligation for the transfer to violate. If a transfer is not prohibited under Article 6 ATT, State parties must still assess the export against the criteria in Article 7 ATT. On the one hand, Article 7 ATT has a lower threshold in that it does not require that the arms in question would be used in the commission of international crimes, but that there is an overriding risk that they could be used to commit or facilitate a serious violation of IHL or IHRL.711 As Casey-Maslen and others have put it: ‘[t]his means that the weapons may be one or more steps removed from the actual violation. (…) [W]eapons that could be used to round up people who are later summarily executed (…) would be covered by this provision.’712 On the other hand, Article 7 ATT still leaves States a certain amount of discretion. The export is prohibited if the risk of such violations is ‘overriding’,713 and the risk of these ‘negative consequences’ can be weighed against the potential that the arms would contribute to peace and security.714 Clapham and Lustgarten are critical of this, and I share their concerns.715 Of course, the arms transfers to Ukraine following Russia’s full-scale invasion in February 2022 can contribute to peace and security, but often, arms do not contribute to peace.716 709 Id, 201-203. See also S Zwijsen, M Kanetake and C Ryngaert, ‘State Responsibility for Arms Transfers – the Law of State Responsibility and the Arms Trade Treaty’ (2020) Ars Aequi 151, 156-157 and Aksenova (2022) 381-382. Cf Lustgarten (2020) 409-410, noting that the world’s main exporters have not followed this interpretation in terms of their practices. Cf also da Silva and Nevill (2021) 119-121. They do not deal with the difficulty of how IHRL treaties would apply in the first place. 710 See Casey-Maslen et al (2016) 197, Lustgarten, Law and the Arms Trade – Weapons, Blood and Rules (Hart 2020) 409 and da Silva and Nevill (2021) 121-122. 711 Casey-Maslen et al (2016) 254. See also at 256, arguing that ‘the practical difference between the two formulations [i.e. could and would] is minimal as in both cases it is a potential that is being assessed.’ Note the inclusion of the notion of ‘serious violations of IHL’ instead of ‘grave breaches’ or ‘war crimes’ here. While the notion of ‘serious violations of IHRL’ is not clearly defined, arbitrary deprivation of the right to life, torture and other ill-treatment, and arbitrary detention and enforced disappearance will never not be ‘serious’. See also Casey-Maslen et al (2016) 260 and further. 712 Casey-Maslen et al (2016) 255. See also Court of Appeal Stichting Oxfam Novib para. 5.18. 713 See Article 7(3) ATT. 714 See Article 7(1)(a) ATT. Cf, on both points, Court of Appeal Stichting Oxfam Novib para. 3.10, equating the criteria in Article 7 ATT with the criteria in Article 2(2) of the EU Common Position (Criterion Two). 715 See A Clapham, ‘The Arms Trade Treaty: A Call for an Awakening’ (2013) 2(5) ESIL Reflections, at 4, noting that this ‘might present a huge loophole’ and Lustgarten (2020) 414, observing that the inclusion of this clause without significant debate ‘is simply bizarre.’ Cf Aksenova (2022) 382, concluding, more optimistically, that the ATT and Article 7(3) specifically ‘requires quite a high level of scrutiny when it comes to authorizing weapons exports’. 716 See again Clapham (2013) at 4. On the legality of States’ support for Ukraine in the form of arms and other military goods, see T Hamilton (2022) and Heller and Trabucco (2022). PROEF PS Joelle Trampert.job_08/28/2024_67A 134 Before examining the transfer prohibitions in more detail below, there is one last point to address with respect to the ATT’s material scope, namely, if it also regulates arms transfers to NSAs. States were apparently deeply divided on this point during the treaty negotiations, especially given various States’ support for non-State armed groups in the conflict in Syria.717 The text of the ATT does not explicitly state that it does cover NSAs as recipients, but it does also not state the contrary. There is little discussion that at least Article 6 ATT applies to State-NSA transfers: if an NSA is the subject of an arms embargo, transfers are banned under paragraph 1, and if an NSA is responsible for committing international crimes, transfers are prohibited under paragraph 3.718 To recall, Article 6(2) ATT prohibits transfers that ‘would violate [the State’s] relevant international obligations under international agreements to which it is a Party’. This includes the UN Charter719 and the 1949 Geneva Conventions, including CA1.720 The ICJ held in the Nicaragua judgement that arming an NSA in and against another State falls foul of Article 2(4) UN Charter; the prohibitions of the use of force and of non-intervention.721 As seen in Section 4.1, IHL clearly covers State-NSA assistance too. The same goes for Article 7 ATT: when there is an overriding risk that the arms would undermine peace and security or could be used to commit or facilitate a serious violation of IHL, a serious violation of IHRL, or an offence related to terrorism or transnational organised crime, the State is required to refrain from authorising the export.722 Besides the contentious issue of whether non-State armed groups bear any duties under IHRL,723 it can be concluded that arms transfers to NSAs are also within the scope of the ATT.724 4.2.2. The knowledge element and the risk assessment criteria This paragraph focuses on the object and standard of States’ knowledge in Article 6 ATT and on the export assessment criteria in Article 7 ATT, including the situation where States acquire new knowledge after the initial authorisation. 4.2.2.1. States’ knowledge before authorisation Articles 6 and 7 ATT impose obligations on State parties in light of the risk that arms or other items under their control would contribute to the commission of international crimes or could contribute to a serious violation of IHL or IHRL by another actor. Whether or not the principal violations are eventually 717 Casey-Maslen et al (2016) 195. 718 Id, 195 and 267. See also Lustgarten (2020) 430. 719 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) XV UNCIO 335, amendments in 557 UNTS 143, 638 UNTS 308 and 892 UNTS 119 (UN Charter). 720 Casey-Maslen et al (2016) 196 and futher, Lustgarten (2020) 431, Aksenova (2022) 381, Ferro (2019) 16. 721 Casey-Maslen et al (2016) 196-199, Lustgarten (2020) 431, da Silva and Nevill (2021) 118-119, Aksenova (2022) 381. 722 Casey-Maslen et al (2016) 267 and further. 723 Id, 268 and Lustgarten (2020) 431-432. 724 See also Jørgensen (2014) 730. PROEF PS Joelle Trampert.job_08/28/2024_67B 135 committed is not necessarily decisive for the assessment of the authorising State’s compliance.725 This is similar to how the prohibition of refoulement operates. For Article 6 ATT, a transfer is prohibited if it ‘would violate (…) relevant international obligations under international agreements’ (paragraph 2) or if the State had ‘knowledge at the time of authorization that the arms or items would be used in the commission of’ international crimes (paragraph 3). Under Article 7 ATT, whether or not an export can be authorised depends on the potential that the arms could be used to commit or facilitate a serious violation of IHL or IHRL. If framed in terms of causality, the requirements for Article 6 ATT are higher than for Article 7 ATT.726 This is compounded by the use of the auxiliary verb ‘would’ instead of ‘could’ as well as the standard of knowledge at the time of authorisation. The relevant rules in the ATT contain an express knowledge requirement and an obligation to conduct a risk assessment. Under Article 6 ATT, the objects and standards of knowledge are as follows: Article 6(2) ATT: no specific knowledge element, although ‘relevant international obligations under international agreements’ such as CA1 may include one. Article 6(3) ATT: knowledge at the time of authorisation that the arms or items would be used in the commission of international crimes. Article 6(3) ATT thus requires knowledge of (ii) the principal violation, i.e., the commission of international crimes, and of (iii) the nexus, i.e., that the arms would be used to commit the crimes.727 The ‘highest possible common international standards’ articulated in the ATT are the result of a compromise here: while the current standard is better than the ‘for the purpose of facilitating’ test in Article 6(3)’s predecessor in the draft treaty of 2012,728 it is still not very demanding. Casey-Maslen and others have concluded that even before any of the international crimes listed in Article 6(3) ATT have been committed, ‘a state may have knowledge imputed to it. The ICJ’s insistence that it is enough 725 Milanovic (2021) 1329 and Casey-Maslen et al (2016) at 205 (‘[u]nder the ATT, no act need occur; it is enough that the potential transfer would be used in the commission of an act in the future.’), at 207 (‘[i]t is not necessary to show that the Article 6(3) violations would only happen should the transfer happen, it will be enough that the arms in the transfer would be used in the commission of the violations’), and at 210 (‘the prohibited acts in Article 6(3) do not necessarily require that shots be fired or that people be killed or injured. Therefore to take two examples of genocide (…) one can see that ‘Imposing measures intended to prevent births within the group’ or ‘Forcibly transferring children of the group to another group’ could be committed simply through the brandishing of small arms, or intimidation of the population. The determination of whether or not the arms would be used in the commission of a type of act therefore depends very much on the context and will not be further developed here.’) 726 See also Milanovic (2021) 1330. Note that the rules in Article 7 ATT do not include a causality test proper, as what is at issue is the link between the State’s conduct, i.e., an export authorisation, and a risk, which does not require any principal violation to materialise. 727 Casey-Maslen et al (2016) 207 and Milanovic (2021) 1330. 728 Draft Article 3(3) of the draft treaty initially read: ‘A State Party shall not authorize a transfer of conventional arms within the scope of this Treaty for the purpose of facilitating the commission of genocide, crimes against humanity, war crimes constituting grave breaches of the Geneva Conventions of 1949, or serious violations of Common Article 3 of the Geneva Conventions of 1949.’ See Casey-Maslen et al (2016) 182 and 204, Lustgarten (2020) 411, da Silva and Nevill (2021) 106-107, and Milanovic (2021) 1330. PROEF PS Joelle Trampert.job_08/28/2024_68A 136 if the state is aware, ‘or should normally have been aware’, reminds us that, at least in the prevention of genocide, constructive knowledge may be enough.’729 They have also cited Liechtenstein’s declaration that ‘knowledge’ includes constructive knowledge. Switzerland has made an identical declaration.730 It should be noted that the ICJ made this statement with respect to the obligation to prevent genocide, an obligation of due diligence, and the interpretive declarations do not necessarily bind other States. If ‘knowledge’ in Article 6(3) ATT means practical certainty,731 then this provision leaves much to be desired. While a high(er) threshold makes sense in relation to the commission of a ‘garden variety’ wrongful act, this is not the case for the most egregious violations of international law. It is also for this reason that the non-assistance rule in the aggravated responsibility regime presumes that all States are on notice of the commission of a serious breach of a jus cogens norm, which includes all the international crimes listed in Article 6(3) ATT.732 As Casey-Maslen and others have pointed out, the temporal scope of the rules reflected in Article 41(2) ASR and Article 6(3) ATT differ: the former applies to an existing gross or systematic failure to fulfil an obligation of jus cogens, whereas the latter applies to a future international crime.733 Still, the rules overlap when the violations or crimes are ongoing, and the presumption of knowledge in Article 41(2) ASR relates specifically to the commission of the violation. Lustgarten has also rightly noted that almost all significant exporting States have dedicated agencies to gather foreign intelligence.734 Thus, if such a State claims that it was unaware of the international crimes, this is likely wilful blindness. In light of the gravity of the harm that the ATT is meant to prevent, a standard of either constructive knowledge or a presumption of knowledge would have been more appropriate. Article 7 ATT operates differently to Article 6 ATT in that it does not contain an absolute prohibition but is structured in terms of due diligence.735 Article 7 ATT sets out a three-step test: Article 7(1) ATT: States shall assess the potential that the arms or items (a) would contribute to or undermine peace and security; (b) could be used to commit or facilitate a serious violation of IHL or IHRL.736 729 Casey-Maslen et al (2016) 207. 730 The declaration states that the State Party will refrain from authorising the transfer ‘if it has reliable information providing substantial grounds to believe that the arms or items would be used in the commission of the crimes listed.’ See <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-8&chapter=26>. 731 Milanovic (2021) 1330, noting that knowledge ‘is inherently a probabilistic assessment of contingent events in the future, if at a high level of certainty.’ 732 ILC Commentary to Article 41 ASR, para. 11. 733 Casey-Maslen et al (2016) 205-207. 734 Lustgarten (2020) 411. See also Casey-Maslen et al (2016) 204, noting that ‘whether an individual has formed guilty intent to assist in a war crime and be subsequently deprived of their liberty for a long period of time, we are really dealing with a different set of parameters from determining whether a state, through its officers and institutions, has access to information that ought to put it on notice that a course of action would lead to a violation by others of a rule of international law.’ 735 See also Seibert-Fohr (2017) 690-691 and fn 104. 736 See under subparagraphs (i) and (ii). Subparagraphs (iii) and (iv) are worded the same way. PROEF PS Joelle Trampert.job_08/28/2024_68B 137 Article 7(2) ATT: States shall also consider whether there are measures that could be undertaken to mitigate risks identified in paragraph 1(a) or (b). Article 7(3) ATT: following the risk assessment and considering any mitigating measures, States shall not authorise the export if they determine that there is an overriding risk of any of the negative consequences in paragraph 1. First, States are required to assess a number of risks, which entails an obligation to make enquiries. Paragraph 1(b) specifies the object of that risk, namely that the arms or items in question could be used to commit or facilitate a (singular) serious violation of IHL or IHRL.737 The term ‘could’ is less demanding than the term ‘would’ used in Article 6(3) ATT, and is more appropriate when considering the risk or likelihood of a future event.738 Second, States are obliged to consider whether there are measures that could mitigate the risks.739 After assessing the potential risks and considering any mitigating measures, the authorising State can balance the risk(s) against the potential that the arms would (positively) contribute to peace and security.740 They are only prohibited from authorising the export if there is an overriding risk that the arms would undermine peace and security or could be used to commit or facilitate a serious violation of IHL or IHRL. This is a high standard, and higher than the ‘clear risk’ standard in the EU Common Position.741 Drummond has even suggested that it may not be in line with the obligation to ensure respect for IHL in CA1.742 This is based on the assumption that the obligation to ensure respect for IHL has the same standard as the obligation to prevent genocide, which 737 See also Casey-Maslen et al (2016) 245. 738 On ‘could’ being less demanding than ‘would’, see Lustgarten (2020) 415 and, albeit in relation to ‘might’ versus ‘will’ in the risk assessment in Criterion Two of the EU Common Position, the User’s Guide to the EU Common Position para. 2.7. See Lustgarten (2020) 76. According to the authors of the leading commentary on the ATT, ‘the practical difference between the two formulations is minimal’, although they do note that ‘the choice of different language is not accidental’. See Casey-Maslen et al (2016) 256. See also J Trampert, ‘A Clear Risk of What? The Egyptian Navy, the Dutch Arms Export Policy and Linguistic Inconsistencies in the EU Common Position’ (Rethinking SLIC, 6 December 2021) <https://rethinkingslic.org/blog/state-responsibility/101-a-clear-risk-of-what-the-egyptian-navy-the-dutch-arms-export-policy-and-linguistic-inconsistencies-in-the-eu-common-position>. 739 Examples include end-user certificates confirming that the exported items will not be re-exported without the consent of the authorising State, ex post checks by the exporting State as to the actual end-use, capacity-building projects and human rights training. See Casey-Maslen et al (2016) 274, da Silva and Wood (2021) 166-167, and Lustgarten (2020) 416-417. 740 Cf Da Silva and Wood (2021) 168-169, stressing the term any in paragraph 3 (‘any of the negative consequences in paragraph 1’) and noting that it is not a balancing exercise. 741 Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, OJ L 335/99 (EUCP or EU Common Position). See on this point Jørgensen (2014) 728; K Trapp and E Robinson, ‘Extra-Territorial Fiduciary Obligations and Ensuring Respect for International Humanitarian Law’ (2018) 63(4) McGill Law Journal 677, 697-699; Zwijsen et al (2020) 158; Drummond (2021) 71-72; and Aksenova (2022) 383. See also Bellal (2014) 467; L Lustgarten, ‘The Arms Trade Treaty: Achievements, Failings, Future’ (2015) 64(3) International and Comparative Law Quarterly 569, 596; A Stavrianakis, ‘Legitimising Liberal Militarism: Politics, Law and War in the Arms Trade Treaty’ (2016) 37(5) Third World Quarterly 840, 848-849; and again Lustgarten (2020) 417-418. Cf Court of Appeal Stichting Oxfam Novib para. 3.10, stating that it refers to the EU Common Position and the ATT interchangeably as the conditions are the same. 742 Drummond (2021) 71. PROEF PS Joelle Trampert.job_08/28/2024_69A 138 the ICJ found to be one of constructive knowledge of the ‘serious risk’.743 This is indeed the applicable standard for the duty to prevent and suppress violations of IHL (the positive limb of the obligation to ensure respect), but the ICRC’s Commentary on the prohibition of assistance implicit in CA1 (one of the two prongs of the negative limb) actually sets out a standard similar to the knowledge standard of the general complicity rule.744 I would therefore be hesitant to conclude that the knowledge standard in Article 7(3) ATT would fall short of the demands of IHL. Liechtenstein and Switzerland – the same States that interpret ‘knowledge’ in Article 6(3) ATT to include constructive knowledge – have declared that they interpret ‘overriding risk’ in Article 7(3) ATT to mean ‘more likely than not’.745 New Zealand has also declared that it interprets ‘overriding risk’ as a ‘substantial risk’.746 Despite this State practice and opinio juris, these States are hardly significant arms exporters.747 Coupled with the discretion which States enjoy when determining whether arms or other items would contribute to international peace and security, the test in Article 7 ATT is especially positive for the foreign policy interests of exporting States and for the economic interests of companies based there. I am not arguing for an absolute ban on arms transfers, in all circumstances, as this is neither remotely realistic nor, perhaps, entirely desirable. Yet as Clapham put it in 2013, just after the ATT was adopted: ‘Clearly the problem with the world is not that there are not enough arms being transferred to ensure peace and security, but rather that arms are being abused and are ending up in the wrong hands.’748 Moreover, even without the risk of diversion, State support for foreign wars and the IHL and IHRL violations committed by parties to the conflict, continues to negatively impact the lives of the civilians who the ATT is ultimately meant to protect. However, there is ever-increasing attention for the responsibility of States which authorise or otherwise allow the transfer of arms to other jurisdictions, and whether the ATT has teeth in this respect will be tested in domestic litigation.749 4.2.2.2. States’ knowledge after authorisation 743 Drummond (2021) 67 and ICJ Bosnian Genocide para. 431. 744 ICRC Commentary to GC III (2020) paras 192 and 195. 745 The declaration states that the State Party will refrain from authorising the export ‘whenever the State Party concerned determines that any of the negative consequences set out in paragraph 1 are more likely to materialise than not, even after the expected effect of any mitigating measures has been considered.’ See <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-8&chapter=26>. This is not the standard which applies in refoulement cases before the ECtHR, see ECtHR Saadi paras 122 and 140. See also Mavronicola (2021) 188. Cf H Battjes, ‘In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed’ (2009) 22 Leiden Journal of International Law 583, 607-608 and 610. 746 See again <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-8&chapter=26>. 747 See also Lustgarten (2020) 418. 748 Clapham (2013) 4. 749 Lustgarten (2020) 400. PROEF PS Joelle Trampert.job_08/28/2024_69B 139 Besides the high standard of knowledge in Article 6(3) ATT, the transfer prohibition under this heading depends on States’ knowledge at the time of authorisation.750 Because licences are often valid for several years and are sometimes renewed automatically if they were not used and the circumstances have not changed,751 the question arises whether States are obliged to modify, revoke or suspend an authorisation following a change of circumstances on the side of the end-user. Article 6 ATT is silent on this matter, which is either a deliberate choice or a drafting oversight.752 Article 7 ATT does foresee this situation, and paragraph 7 encourages States to reassess an authorisation in light of new relevant information. However, it does not explicitly oblige them to do so.753 Thus, what obligations do States party to the ATT have (if any) when an overriding risk that the exported arms could be used to commit or facilitate a serious violation of IHL or IHRL comes to light after the export licence was granted? This question was front and centre in the litigation in the Netherlands concerning the continued transfer of F-35 parts (items within the scope of the ATT) to Israel after the events of 7 October 2023. One perspective is that while Article 7(7) ATT contains an encouragement to reassess an authorisation in light of new relevant information, this is not a binding obligation.754 This follows from the literal wording of the provision. However, the Court of Appeal of The Hague held otherwise. Conceding that although ‘the ATT may not contain the obligation to reassess every licence granted if new circumstances arise, that obligation does exist in the present case.’755 The court found that as the licence at issue had been granted for an indefinite period of time, the licence had last been assessed when it was issued in 2016, and the change of circumstances concerned a clear risk of serious violations of IHL – which is a mandatory ground for denial in the EU Common Position – the State was obliged to conduct a new risk assessment.756 This followed from a ‘reasonable interpretation’ and the objectives of the EU Common Position, which the court equated with the ATT. The conclusion that Article 7 ATT and the relevant risk assessment criteria in the EU Common Position would not contain an obligation but only an encouragement ‘would lead to the unacceptable result that the purpose of the EUCP could be completely undermined’ if States could indeed authorise licences for an indefinite period of time, which would never have to be assessed again, even if serious violations of IHL would be committed with the arms by the recipient country. This could not be the purpose of the EU Common Position or the ATT.757 I applaud this judgement and the outcome of the case, but it may actually have been the intention of the drafters to set the ATT up in this way. However, the State’s decision not to halt the transfers was still in contravention of CA1, and interpreting the transfer prohibition in Article 7 ATT in 750 Id, 412. 751 Casey-Maslen et al (2016) 285. 752 Lustgarten (2020) 412. 753 Casey-Maslen et al (2016) 285. 754 Id. 755 Court of Appeal Stichting Oxfam Novib para. 5.24. [Translation mine] 756 Id. 757 Id. PROEF PS Joelle Trampert.job_08/28/2024_70A 140 light of this rule supports the conclusion reached in this judgement.758 The State has announced that it will appeal the judgement before the Supreme Court.759 As with the litigation in the UK regarding the government’s decision to continue allowing the export of arms to Saudi Arabia, this case does not concern the Netherlands’ responsibility for complicity in any of the principal violations allegedly (or: plausibly) committed by Israel; rather, it concerns the lawfulness of the decision to continue the export of arms. 4.2.3. Responsibility for breaching the transfer prohibitions and complicity The people whose interests and lives the rules in the ATT are meant to protect are by definition outside the territory of the transferring State. The risk of the arms or items in question contributing to the commission of international crimes or serious human rights violations by actors in another State is what determines the legality of the decision of the transferring State. If a transferring State breaches the ATT, e.g., by allowing the transfer of F-35 parts, despite having knowledge at the time of the authorisation that the combat aircraft and therefore also the parts would be used in the commission of war crimes, or despite an overriding risk that they could be used to commit or facilitate a serious violation of IHL, it will incur responsibility for breaching its obligations under the ATT. For the breach to arise, these violations need not materialise.760 If they do, and the arms were used, the transferring State will also be responsible for contributing to the violations by authorising the transfers. Still, that responsibility will strictly relate to the breach of the obligations in the ATT, and not to any of the consequences of the transfer as such. Thus, under the ATT, the transferring State will not incur responsibility in connection with the principal violations. As Article 6(3) ATT is worded in absolute terms, some scholars have drawn a parallel between Article 6(3) ATT and the general complicity rule.761 On the one hand, both contain a negative obligation, and the knowledge elements of the transfer prohibition contained in Article 6(3) ATT and of the complicity rule reflected in Article 16 ASR are similar. On the other hand, Article 6(3) ATT still operates differently to a complicity rule, because it prohibits State conduct prior to and irrespective of whether the principal violation ultimately occurs. In this sense, Article 6(3) ATT and the prohibition flowing from Article 7(3) ATT are closer to the prohibition of refoulement.762 Still, the connection between complicity and arms trade is clear.763 The ILC also expressly referred to States ‘supplying arms 758 Id, para. 5.25. 759 Government of the Netherlands, ‘State lodges appeal in cassation against judgment on distribution of F-35 parts to Israel’ <https://www.government.nl/latest/news/2024/02/12/state-lodges-appeal-in-cassation-against-judgment-on-distribution-of-f-35-parts-to-israel>. 760 See also Casey Maslen et al (2016) 205. 761 See Ferro (2019) 18, also referencing Jørgensen (2014) 727 and Dörmann and Serralvo (2014) 734. 762 See Milanovic (2021) 1329, fn 223. 763 See also Pacholska (2020) 144, stating that ‘delivery of conventional arms is arguably the most common form of aid or assistance triggering State responsibility for complicity.’ PROEF PS Joelle Trampert.job_08/28/2024_70B 141 and other military assistance to countries found to be committing serious human rights violations’ in its Commentary to Article 16 ASR.764 Surprisingly, States did apparently not pay much attention to the general complicity rule during the negotiations of the ATT.765 But just as with practically any other type of assistance, if the conditions for complicity are fulfilled, States will (also) incur responsibility for complicity in the principal violations. In sum, if the transfer of arms or other items within the scope of the ATT significantly contributed to the commission of the principal violation and the transferring State was practically certain that the principal violation would happen and had actual knowledge that the arms or items would be used to commit that violation and still authorised the transfer anyway, the conditions for complicity are present. In this case – and after the (initial) principal violation has occurred – the transferring State will be responsible for breaching its treaty obligations as well as for complicity in the principal violations. As for the question of relevant information which comes to light after the State authorised a transfer, the ATT does not unequivocally oblige a reassessment. However, the State’s decision not to modify, revoke or suspend a licence that allows multiple transfers to a country where international crimes or serious human rights violations are (on the brink of) being committed, will expose the State which allowed the exports to the risk of incurring responsibility for complicity under the law of State responsibility, responsibility for assistance in the maintenance of a situation created by a serious breach of a norm of jus cogens under the aggravated responsibility regime, and/or independent responsibility for breaching an obligation in another legal regime, such as IHL, or, arguably, even IHRL. 4.3 Interim conclusion All States which engage with a party to an armed conflict are bound by the obligation to ensure respect for IHL. This overarching obligation includes obligations of restraint and obligations of due diligence: States must refrain from encouraging and assisting violations of IHL and must make their best efforts to suppress current and prevent further violations of IHL. For the purpose of this study, the prohibition of assistance is the most relevant, and compared to the positive obligations it is much less controversial. It is worth underlining that the prohibition of assistance requires nothing but abstinence; as soon as there is an expectation, ‘based on facts or knowledge of past patterns’ that a State’s assistance would be used to violate IHL, that State is prohibited from providing the assistance, or required to halt any further assistance. Despite the ICRC’s Commentary stating that the prohibition of assistance can be breached even when the assisting State did not intend to facilitate the principal violation, the knowledge standards of the general complicity rule and CA1’s implicit non-assistance rule are actually rather alike. Nonetheless, and as the ICRC’s Commentary also adds, the provision of assistance in the knowledge that it will be used to commit violations of IHL breaches CA1, even though it may not amount to 764 ILC Commentary to Article 16 ASR, para. 9. 765 Casey-Maslen et al (2016) 204-205. PROEF PS Joelle Trampert.job_08/28/2024_71A 142 complicity. Such a rule could be identified in the Genocide Convention too, and would capture State involvement that does not reach the level of complicity per se, but is more direct and blameworthy than a mere failure to suppress or prevent. Finally, besides addressing assisting State-principal actor constellations, the obligation to ensure respect for IHL also covers third State-secondary actor constellations, and requires these States to regulate the conduct of such secondary, corporate actors in their relations with the principal actor, i.e., a party to a conflict which commits violations of IHL. The obligations in the ATT can be seen as a further crystallisation of this obligation in the context of IHL. The ATT is an important addition to the legal framework applicable to States which, whether or not they intend to, knowingly take the risk of contributing to the commission of serious violations of IHL or IHRL abroad. The obligation to assess the potential that arms or other items exported from their jurisdiction could be used to commit or facilitate serious violations of IHL or IHRL as laid down in Article 7(1)(b) ATT is particularly important, as it imposes a duty to assess the risk prior to any export authorisation. However, Article 7 ATT seemingly permits the risk of a violation to be weighed against peace and security interests, and the export is only prohibited under this heading if the risk of any of the negative consequences is ‘overriding’. Furthermore, while Article 7 ATT encourages States to reassess authorisations in light of new relevant information, it does not explicitly oblige them to do so or to halt the transfer. An appeals court in the Netherlands has concluded that Article 7 ATT does require a reassessment if there is a change of circumstances which relates to the risk of serious violations of IHL. Article 6 ATT is more absolute than Article 7 ATT, in that it cannot be read to allow a balancing act. But besides its silence on what happens in light of new information, the standard of knowledge at the time of the authorisation is high. The rationale for the presumption of knowledge in the aggravated responsibility regime should apply here too, if the violations in question qualify as serious breaches of jus cogens norms. State parties which then decide to authorise a transfer, e.g., because they see no connection between the end-use of the arms and the commission of the crimes, might not only incur responsibility for breaching their obligations under the ATT, but for complicity in the principal violations too. PROEF PS Joelle Trampert.job_08/28/2024_71B 143 CHAPTER 5. THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Introduction This Chapter focuses on the last two legal regimes selected for this study: the ECHR and the ICCPR. Both codify the right to life, the prohibition of torture, and the right to liberty and security of person.766 The ECtHR and the HRC have both found States responsible for complicity in or other contributions to violations of these rights, especially in the context of the extraordinary rendition programme. However, these cases concerned territorial assistance, where the applicability of the human rights treaty in question was not at issue. Because this study is particularly interested in extraterritorial or cross-border assistance, i.e., where the victim is not physically present within the assisting State’s territory, a large part of this Chapter discusses various approaches to extraterritorial jurisdiction. Drawing on these different models for extraterritorial jurisdiction and in light of the rules or concepts used to assign responsibility for territorial complicity, this Chapter addresses the question how States party to the ECHR and the ICCPR respectively can incur responsibility on the basis of these treaties for extraterritorial complicity in or other contributions to serious violations of the aforementioned rights. It does so by looking at three different cases: the case of M.Z. v Belgium, as discussed in Chapter 3;767 a case concerning Italy’s responsibility in connection with the conduct of the Libyan coastguard;768 and a hypothetical case concerning a State’s responsibility regarding the transfer of arms to another State.769 After briefly discussing the notion of jurisdiction in human rights treaties (5.1), the Chapter focuses on the ECHR (5.2) and the ICCPR (5.3). A final Section provides an interim conclusion (5.4). 5.1. Jurisdiction in human rights treaties Most human rights treaties include a jurisdictional clause. Article 1 ECHR stipulates that ‘the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in (…) this Convention.’ Similarly, Article 2(1) ICCPR dictates that ‘each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant (…).’ The term ‘jurisdiction’ in these clauses 766 These are laid down in Articles 2, 3, and 5 ECHR, and Articles 6, 7, and 9 ICCPR. Naturally, these rights are also part of customary international law. 767 See Section 3.2, 3.2.2. 768 See S.S. et Autres c Italie, App No. 21660/18, currently pending before the ECtHR (submitted 3 May 2018, communicated 26 June 2019). 769 EWHC Campaign Against Arms Trade and Court of Appeal Stichting Oxfam Novib. PROEF PS Joelle Trampert.job_08/28/2024_72A 144 is not ‘just a word’, but designates a legal concept which is specific to IHRL.770 In his 2011 monograph, Milanovic set out the different meanings of the word ‘jurisdiction’, including the difference between jurisdiction for IHRL and in public international law (PIL).771 A State’s jurisdiction in the sense of Article 1 ECHR (IHRL-jurisdiction) does not necessarily equate with its entitlement to legislate, adjudicate, and enforce legislation and judgements on the basis of certain grounds in international law (PIL-jurisdiction), despite the ECtHR sometimes saying that it does.772 Instead, the term ‘jurisdiction’ in Article 1 ECHR designates a threshold criterion, limiting the Convention’s scope of application to individuals within the State’s territory or otherwise under its control.773 The same goes for the ICCPR.774 The aftermath of the downing of Malaysia Airlines flight 17 in eastern Ukraine in 2014 helps illustrate the difference between PIL-jurisdiction and IHRL-jurisdiction: the Netherlands has PIL-jurisdiction to investigate, prosecute, and punish the individuals responsible for the crash and the death of the people on board on the basis of the principle of passive personality, and, regarding the non-Dutch victims, a bilateral treaty with Ukraine, which has jurisdiction on the basis of the principle of territoriality.775 The Netherlands did not have IHRL-jurisdiction over the victims of the crash at the time of the crash and thus owed them no human rights under the Convention, as at that moment they were not within the Netherlands’ jurisdiction in the sense of Article 1 ECHR.776 To compare, the Netherlands did have IHRL-jurisdiction over the victims’ next of kin during the criminal trial, which took place in the Netherlands. Thus, as Milanovic has also concluded, PIL-jurisdiction has ‘precisely nothing’ to do with IHRL-jurisdiction.777 Comparing the Genocide Convention, the Geneva Conventions, and the ATT on the one hand to the Torture Convention, the ICCPR, and the ECHR on the other hand, it is clear that the obligations in the former are not conditioned by any notion of State jurisdiction or control over an individual, precisely because they are meant to apply irrespective of where States act, or at least have the capacity 770 Cf M Sheinin, ‘Just Another Word? Jurisdiction in the Roadmaps of State Responsibility and Human Rights’ in M Langford, W Vandenhole, M Scheinin, W van Genugten (eds) Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (CUP 2013) 212 and further. But see Milanovic (2020) 345. 771 See Milanovic (2011) 21 and further, Raible (2020) 162-166, Besson (2023) 274 and 282 and further, and Ryngaert (2015) 5-10 and 22-27. 772 See e.g. H.F. and Others v France [GC] App Nos 24384/19 and 44234/20 (ECtHR, 14 September 2022) para. 184, and Ukraine v Russia (Crimea) App nos 20958/14 and 38334/18 (dec) [GC] (ECtHR, 16 December 2020), para. 344, with reference to, inter alia, Banković and Others v Belgium and Others [GC] App No. 52207/99 (decision) (ECtHR, 12 December 2001) paras 59-61. 773 Al-Skeini and Others v the United Kingdom [GC] App No. 55721/07 (ECtHR, 7 July 2011) para. 130 and Al-Jedda v the United Kingdom [GC] App No. 27021/08 (ECtHR, 7 July 2011) para. 74. 774 ICJ Wall para. 109. 775 See also J Trampert, ‘Possible Implications of the Dutch MH17 Judgment for the Netherlands’ Inter-State Case before the ECtHR’ (EJIL:Talk!, 12 December 2022) <https://www.ejiltalk.org/possible-implications-of-the-dutch-mh17-judgment-for-the-netherlands-inter-state-case-before-the-ecthr/>. 776 Another indication that ‘PIL-jurisdiction’ and ‘IHRL-jurisdiction’ are not the same, is that at least under the ECHR, nationality alone is not an autonomous basis for jurisdiction. See e.g. ECtHR H.F. and Other paras 198 and 206. However, in similar cases, UN treaty bodies have held differently. This is discussed in Section 5.3. 777 Milanovic (2011) 26. PROEF PS Joelle Trampert.job_08/28/2024_72B 145 to do so.778 While the Genocide Convention is meant to protect humans and not States ‘from such an odious scourge’,779 the obligations in this treaty are still owed primarily towards the international community, rather than to any specific individual(s). To some extent, human rights treaties can be viewed as any other treaty, namely as agreements between States to abide by certain negative and positive obligations. An argument could then be made that States should comply with these agreements whenever and wherever they act. But human rights treaties have a special character, in that they govern the vertical relationship between a specific State and a specific individual. Despite the idea that human rights are universal, State parties to human rights treaties do not owe human rights to everyone, everywhere, all the time, also not to their own nationals. At the same time, the idea that jurisdiction exclusively equals territory and that States only ever bear duties under IHRL towards individuals within their territory, is no longer tenable. Thus, there is agreement on two opposite sides of the spectrum: the ECHR’s and the ICCPR’s scope of application is not territorially unbound, but it is also not exclusively dependent on State territory. This raises the inevitable question: if a State’s border is not the limit, where should it be drawn instead? In 5.2.1 and 5.3.1 below, I look at the various approaches developed by courts and scholars in relation to the ECHR and the ICCPR. These Sections mainly analyse the positive law as interpreted by the ECtHR and the HRC, and do not aim to partake in any philosophical or theoretical debates.780 However, I have included two influential theories on jurisdiction which have been advanced in the literature by Milanovic and Shany. These are discussed in more detail below.781 In a nutshell, following Milanovic’s theory, States should always be obliged to respect human rights, regardless of where and when they act, whereas they would only be obliged to secure human rights when an individual is within their jurisdiction and thus under their control.782 In other words, States would always have negative human rights obligations, but positive substantive obligations would remain conditioned by jurisdiction. Following Shany’s theory, States would be obliged to respect and secure all human rights wherever and whenever they act, so long as they can reasonably be expected to do so.783 Shany’s idea goes further than Milanovic’s in that it includes all obligations, regardless of whether they are positive or negative in nature.784 This is a truly universalist account of human rights.785 According to both approaches, if a State bombs a town in another State and kills dozens of civilians, the human rights treaty that the former is bound by applies. 778 Article I Genocide Convention and ICJ Bosnian Genocide para. 183. 779 Preamble Genocide Convention. See also Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, 15 (ICJ, 28 May 1951) 23. 780 See especially Raible (2020). 781 See Section 5.2, 5.2.1.4, and Section 5.3, 5.3.1. 782 Milanovic (2011) 210. 783 Y Shany, ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law’ (2013) 7(1) Law & Ethics of Human Rights 47, 67. See also O Ben-Naftali and Y Shany, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’ (2003) 37(1) Israel Law Review 17. 784 See for Shany’s discussion of Milanovic’s theory, Shany (2013) 61-67. 785 Id, 67. PROEF PS Joelle Trampert.job_08/28/2024_73A 146 This is precisely the type of situation that the ECtHR excluded from the scope of the ECHR in its infamous decision in Bankovic and Others v Belgium and Others, which has largely been eroded, although some remnants still remain.786 Besson in particular is critical of Milanovic’s and Shany’s ideas.787 For her, jurisdiction is a normative relationship between individuals as subjects and rights-holders, and States as authorities and duty-bearers.788 That relationship is grounded in the State’s political and legal authority over an individual, which is most prevalent in, but not limited to, State territory.789 The State’s authority is exercised and perceived through the State’s institutions,790 and only the State, through its institutions, can consent to be bound by human rights obligations vis-à-vis (other) individuals. Besson fears that by broadening IHRL-jurisdiction or by ‘spreading the requirements of state jurisdiction so thin (…) we endanger our democratic institutions and our human rights themselves.’791 I acknowledge some of the issues or inconsistencies with other approaches below, but a broader interpretation of jurisdiction is the direction of travel in IHRL. I am also in favour of a more progressive conceptualisation of jurisdiction. If a State consents to be bound by human rights obligations ‘at home’, it is unpalatable that the most fundamental of these could be flouted in their entirety when that same State operates abroad, or when it is directly or indirectly involved in another State’s operations abroad. I am not advocating for an unlimited application of IHRL, but I reject the assumption that IHRL cannot or should not apply to scenarios of extraterritorial complicity. 5.2. The European Convention on Human Rights As States will only incur responsibility under the Convention if it applies, this Section starts with an overview of different approaches to extraterritorial jurisdiction (5.2.1). Next, it identifies the rules and concepts which the Court has used to establish Contracting States’ responsibility for complicity in and other contributions to serious human rights violations (5.2.2) and discusses the conditions of these rules (5.2.3). The final paragraph examines how responsibility for complicity or other contributions could be assigned in an extraterritorial context (5.2.4). 786 See e.g. Milanovic (2011) 54 and further, Shany (2013) 51-52 and 54-56, and Berkes (2021) 47. 787 See for a helpful overview of the three central theories or views of IHRL-jurisdiction developed by Milanovic, Besson, and Shany respectively Raible (2020) 77-101, providing a comparison and presenting a critique. See also S Besson, ‘LJIL Symposium: A Response by Samantha Besson’ (Opinio Juris, 21 December 2012) <https://opiniojuris.org/2012/12/21/ljil-symposium-a-response-by-samantha-besson/> and Besson (2023) 278-279 and 281. 788 S Besson ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25 Leiden Journal of International Law 857, 863. See also Besson (2023) 269 and 275. 789 Besson (2012) 863, noting that ‘[w]hen territorial jurisdiction is mentioned, it should not therefore be understood to mean that jurisdiction is territorial in nature, but only that territory is used as shorthand for the function of jurisdiction.’ See also Besson (2023) 276. 790 Besson (2012) 864-865. 791 Id, 884. PROEF PS Joelle Trampert.job_08/28/2024_73B 147 5.2.1. The ECHR’s extraterritorial application As a general rule, Article 1-jurisdiction is territorial, and situations where a State is not deemed to exercise jurisdiction within its territory792 or where it is considered to have jurisdiction outside its territory,793 are exceptional.794 There are two well-established grounds for extraterritorial jurisdiction under the ECHR, namely where States have ‘effective control’ over an area outside their own territory (5.2.1.1), and where State agents have ‘authority and control’ over a person abroad (5.2.1.2). There is also a relatively new third ground, which (so far) applies in relation to procedural obligations (5.2.1.3).795 Other human rights bodies as well as academics have developed alternative models for jurisdiction which are relevant here too (5.2.1.4). 5.2.1.1. The spatial model: military presence or support of an NSA The spatial model is essentially an adaptation of the territorial model to extraterritorial settings, as it assumes that a State, through exercising control over territory, automatically exercises control over the individuals within that territory, and thus owes human rights obligations to individuals present there.796 Usually, a State will have spatial jurisdiction as a consequence of its lawful or unlawful military action in a specific area abroad, which means that jurisdiction will predominantly depend on the strength of the State’s military presence. If military presence alone does not amount to effective control over the area in question, other indicators, namely the State’s military, political, and economic support for the local subordinate administration controlling the area, may still mean that the State had effective control over the area. Persons physically present in that geographical area will be within the State’s jurisdiction. This model was decisive in the admissibility decision in Ukraine and the Netherlands v Russia: the Grand Chamber concluded that ‘Russia’s military presence in eastern Ukraine and the decisive degree of influence and control it enjoyed over the areas under separatist control in eastern Ukraine as a result 792 First, Contracting States might not have control ‘as a result of military occupation by the armed forces of another State which effectively controls the territory concerned (…), acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned.’ See Ilaşcu and Others v Moldova and Russia [GC] App No. 48787/99 (ECtHR, 8 July 2004) para. 312. Note that the territorial State still has a duty to take all the appropriate measures which it is still able to take, see para. 313. Second, Contracting States which are hosting an international criminal tribunal are not considered to exercise Article 1-jurisdiction over the individuals present at these tribunals, see Galić v the Netherlands, App No. 22617/07 (decision) (ECtHR, 9 June 2009) and Djokaba Lambi Longa v the Netherlands, App No. 33917/12 (decision) (ECtHR, 9 October 2012). See further on these exceptional cases E Irving, Multi-Actor Human Rights Protection at the International Criminal Court (CUP 2020) 141-144. 793 These are cases where acts of the State ‘produce effects’ outside the State’s own territory, i.e., the spatial or the personal model. 794 ECtHR Ukraine and the Netherlands v Russia paras 553 and further. This decision is referred to repeatedly, as it gives a recent and comprehensive account of the Court’s approach to extraterritorial jurisdiction. 795 See also ECtHR Ukraine and the Netherlands v Russia para. 559, referring to all three grounds or models. 796 See also Moreno-Lax (2020) 386. PROEF PS Joelle Trampert.job_08/28/2024_74A 148 of its military, political and economic support to the separatist entities’ meant that those areas were, at the relevant time, under Russia’s effective control.797 In determining the extent of the military support, the Court looked at Russia’s influence on military strategy, the supply of weapons and other equipment, military training, artillery cover, and the build-up of troops at the border. Not all of these factors need to be present in each and every case, but a number of them are required in order for the State’s support to reach the requisite level of control. More concretely, the supply of weapons and provision of training alone will not result in a finding that the State had effective control over the area controlled by the NSA. When a State does exercise effective control over an area through support for and influence over a separatist entity, this will likely also mean that the State also exercises effective control over that NSA for the purpose of attribution of conduct, leading to direct responsibility for that actors conduct. Indeed, in the Ukraine and the Netherlands v Russia decision, the Court added that Russia’s influence and control over the separatist area, and by extension, over the separatists themselves, is such that it amounts to control over the NSA for the purpose of attribution.798 In the scenarios this study addresses, the assisting State will not have effective control for the purpose of establishing extraterritorial jurisdiction or for the purpose of attribution of conduct. 5.2.1.2. The personal model: public powers or proximate targeting To date, the ECtHR has found that States can exercise extraterritorial jurisdiction on the basis of the personal model in three different situations: where a Contracting State’s diplomatic or consular agents abroad exercise their authority and control over persons or their property;799 where, with the consent or at the invitation of the government of another State, a Contracting State exercises ‘public powers’ normally exercised by the government; and, in certain circumstances, where a Contracting State’s agents operating outside the State’s territory use force against a person.800 This third category ‘encompasses two distinct, albeit potentially overlapping, scenarios’: those where State agents have physical power and control over an individual, and where State agents commit an ‘isolated and specific’ act of violence against an individual with an ‘element of proximity’.801 In practice, this boils down to situations of abduction, arrest, custody, extradition, and, for the second type of scenario, targeted killing, such as shooting or poisoning. With respect to the latter, in Carter v Russia, the Court found that the poisoning of Mr Litvinenko in a London hotel by two Russian agents ‘amounted to the exercise of physical power and control over his life in a situation of proximate targeting.’802 Leaving the problem with the arbitrariness of the cut-off point aside, an assisting State’s agents will not often have control 797 ECtHR Ukraine and the Netherlands v Russia para. 695. 798 Id, para. 697. 799 I do not discuss this further. 800 ECtHR Ukraine and the Netherlands v Russia paras 566-568. 801 Id, paras 568-570. 802 Carter v Russia, App No. 20914/07 (ECtHR, 21 September 2021) paras 161 and 170. PROEF PS Joelle Trampert.job_08/28/2024_74B 149 over the victim by detaining them or by subjecting them to an isolated and specific act of violence involving an element of proximity.803 Regarding the category of ‘public powers’, the Court applied this jurisdictional basis in the seminal case of Al-Skeini v the United Kingdom. Instead of determining whether the UK, as one of the occupying powers in Iraq, had effective control over the area, it found that the six Iraqi nationals killed by British armed forces were within the UK’s jurisdiction due to the fact that the UK had exercised ‘some of the public powers normally to be exercised by a sovereign government’, and that the UK soldiers had therefore exercised authority and control over the individuals killed during security operations.804 The single fact that British soldiers had killed the Iraqi nationals might not have been a sufficient jurisdictional link, which allowed the Court to keep its decision in Bankovic intact. As will be discussed in the next paragraph, the UK’s jurisdiction could have been constructed differently, at least in relation to its procedural obligations under Article 2 ECHR (5.2.1.3). Moreover, as will be elaborated in the penultimate paragraph, the public powers idea can also be (re)conceptualised in a way that does not necessarily focus on control over a person (or an area), but provides for a more comprehensive account of normal State functions (5.2.4.2.). 5.2.1.3. A third model: procedural obligations and ‘special features’ The third and last ground for the Convention’s extraterritorial application currently accepted by the Court results from a number of cases concerning a person’s death outside a Contracting State’s territory. In the absence of effective control over the area where the death occurred or authority and control over that person at the time of their death, there may still be a jurisdictional link as regards the obligation to investigate the death in accordance with the procedural limb of Article 2 ECHR when the State has, by virtue of its own domestic law, instituted a criminal investigation or criminal proceedings.805 Alternatively, where no such investigation or proceedings have been initiated, there can still be a jurisdictional link on the basis of so-called ‘special features’.806 The Court has never specified ‘an exhaustive list of such features since they will necessarily depend on the particular circumstances of 803 Id, para. 570. See also paras 571-572, where the Grand Chamber first rejected Bankovic on the point that Convention rights could supposedly not be divided and tailored, but then concluded that ‘[u]nlike jurisdiction based on effective control over an area, the Court has on numerous occasions found personal jurisdiction under Article 1 of the Convention to exist outside the Convention legal space’, thereby alluding to the espace juridique notion in Bankovic. On why this is problematic, see M Milanovic, ‘The European Court’s Admissibility Decision in Ukraine and the Netherlands v Russia: The Good, the Bad and the Ugly – Part II’ (EJIL:Talk!, 26 January 2023) <https://www.ejiltalk.org/the-european-courts-admissibility-decision-in-ukraine-and-the-netherlands-v-russia-the-good-the-bad-and-the-ugly-part-ii/>. 804 ECtHR Al-Skeini and Others para. 149. Cf Jaloud v the Netherlands [GC] App No. 47708/08 (ECtHR, 20 November 2014) para. 152. 805 In this sense, IHRL-jurisdiction does actually have something to do with PIL-jurisdiction. 806 ECtHR Ukraine and the Netherlands v Russia paras 573-575, with reference to Güzelyurtlu paras 188-190, with reference to Rantsev v Cyprus and the Russian Federation, App No. 25965/04 (ECtHR, 7 January 2010) paras 243-244. PROEF PS Joelle Trampert.job_08/28/2024_75A 150 each case and may vary considerably from one case to another’,807 but two Grand Chamber judgements delivered in 2021 (Georgia v Russia II and Hanan v Germany) present some commonalities.808 Another Grand Chamber judgement delivered in 2022 (H.F. and Others v France) concerns a different scenario and direction.809 In Georgia v Russia II, a case concerning Convention violations committed in the context of the armed conflict between the countries in 2008, the Court found that Russia had no control, and thus no jurisdiction, over the victims during ‘the active phase of the hostilities’ on the basis of either the spatial or the personal model.810 However, Russia was still obliged to investigate the alleged war crimes committed during that phase (and in that area) as (i) the relevant rules of IHL and domestic law required this, (ii) Russia had established effective control over the territories in question shortly after the crimes were committed, and (iii) Georgia was unable to carry out an adequate and effective investigation as the potential suspects were not under their control.811 The Court had confirmed in previous cases that this procedural obligation under Article 2 ECHR had evolved into a ‘separate and autonomous’ obligation.812 In Hanan v Germany, a case concerning an airstrike in Afghanistan by two US Air Force aircraft following the order of a German colonel which killed the applicant’s two sons, the Court specified that Germany had (IHRL) jurisdiction in relation to the procedural duty to investigate in Article 2 ECHR due to the fact that (i) it had retained exclusive (PIL) jurisdiction over its troops in respect of serious crimes which (ii) it was obliged to investigate under IHL and domestic law.813 The Court was careful in its formulation here, concluding that these special features ‘in their combination trigger the existence of a jurisdictional link’.814 There are no cases where other legal rules alone gave rise to a jurisdictional link for the purpose of Article 1 ECHR, but this possibility is not excluded either.815 In Jaloud v the Netherlands, a case concerning a violation of the procedural duty under Article 2 ECHR by the Netherlands following a civilian death in Iraq in 2004, the Court stated that it takes the ‘particular factual context and relevant rules of international law’ into account for establishing a State’s Article 1-jurisdiction.816 By looking at other legal rules in order to interpret Article 1 ECHR, or any of the ECHR’s other provisions for that matter, the Court follows the principle of systemic integration laid 807 ECtHR Ukraine and the Netherlands v Russia para. 575. 808 Georgia v Russia (II) [GC] App No. 38263/08 (ECtHR, 21 January 2021) and Hanan v Germany [GC] App No. 4871/16 (ECtHR, 16 February 2021). The latter also contains an element of State assistance. 809 ECtHR H.F. and Others. This case has nothing to do with State assistance. 810 ECtHR Georgia v Russia (II) paras 125-144. 811 Id, paras 328-332, especially para. 331. 812 See Šilih v Slovenia, App No. 71463/01 (ECtHR, 9 April 2009) para. 159, but see Güzelyurtlu para. 189, confirming that this obligation can apply even when the death occurred outside the State’s jurisdiction. The Court repeated this in Hanan para. 115, Carter para. 131, and Ukraine and the Netherlands v Russia para. 573. 813 ECtHR Hanan para. 142. See also paras 134-141. 814 Id, para. 142. [Emphasis mine] 815 See also Trampert (2023) 296-297. 816 ECtHR Jaloud para. 141. PROEF PS Joelle Trampert.job_08/28/2024_75B 151 down in Article 31(3)(c) of the Vienna Convention on the Law of Treaties.817 This general rule of treaty interpretation states that, together with the context, ‘any relevant rules of international law applicable in the relations between the parties’ shall be taken into account. The Court could expand its ‘special features’ approach to situations where a State does not directly interfere with the rights of individuals abroad, but where it aids and assists another actor in doing so.818 For example, if agents of Contracting State A assist agents of State B in an act of torture or ill-treatment, the assisting State could very well have Article 1-jurisdiction over the victim, who is not located in State A, under the procedural obligation attached to the prohibition of torture. This would be so because other legal rules dictate that State A must investigate complicity in acts of torture, namely under the Torture Convention and domestic criminal law. Again, whether other legal rules alone would be sufficient for jurisdiction as to the procedural limb of a given obligation is uncertain, but not excluded. Also, given that this would not entail an extensive expansion of the ECHR’s extraterritorial application, the Court as well as Contracting States might not be opposed to it. Moreover, this approach could also be adapted to other types of procedural obligations, i.e., beyond the obligation to carry out an investigation into a death or an act of torture. There is a precedent for this. In the case of H.F. and Others v France, the Court was tasked with determining whether France had the obligation to repatriate its nationals held with their children in Kurdish-run camps in Syria, which largely revolved around the question whether France exercised Article 1-jurisdiction over them. After confirming that France had no spatial or personal jurisdiction over the applicants and that the opening of proceedings at the domestic level did not trigger France’s jurisdiction (and thus, the application of the Convention), the Court examined whether there were any ‘special features’ that might give rise to the exercise of jurisdiction by France over the people in the camps.819 The Court concluded that France did not have jurisdiction in relation to Article 3 ECHR, but that it did in relation to the right to enter the territory of one’s country of nationality.820 In a rather complicated way, the Court held that France had jurisdiction over the applicants’ relatives (i.e., the persons in the camps) on the basis of the ‘legal link between the State and its nationals’ and certain ‘special features’, namely (i) that the applicants had addressed a number of repatriation requests to the French authorities, (ii) that these requests were ‘made on the basis of the fundamental values of the democratic societies which make up the Council of Europe’, (iii) that it was impossible for the people in the camps to reach the French 817 The Court cited Article 31 VCLT under the heading ‘Relevant Legal Framework and Practice’ in ECtHR Hanan para. 76. See also, e.g., Al-Adsani v the United Kingdom [GC] 35763/97 (ECtHR, 21 November 2001), para. 55 and more recently Al-Dulimi and Montana Management Inc. v Switzerland [GC] App No. 5809/08 (ECtHR, 21 June 2016) para. 134, and V Tzevelekos, ‘The Use of Article 31(3)(c) of the VCLT in the Case Law of the ECTHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration’ (2010) 31 Michigan Journal of International Law 621. 818 See also Milanovic (2021) 1356 and fn 330. 819 ECtHR H.F. and Others para. 190. 820 Id, paras 203 and 204-214. PROEF PS Joelle Trampert.job_08/28/2024_76A 152 border without France’s assistance, and (iv) that the Kurdish authorities had indicated their willingness to assist the repatriation of French women and children.821 In these particular circumstances, France had extraterritorial jurisdiction over its nationals in the camps.822 That jurisdiction did not trigger any general obligation to repatriate (which does not to exist),823 but concerning its examination of the repatriation requests specifically, France had the obligation to ensure that the decision-making process was surrounded by appropriate safeguards against arbitrariness.824 Although highly case-specific, this can still be seen as an addition to the Court’s ‘special features’ case law in that it means that States can have other extraterritorial procedural obligations besides the obligation to investigate. More concretely, Contracting States might not only have extraterritorial procedural obligations in relation to acts committed abroad, but also in relation to decisions taken domestically which impact people abroad. Besides the fact that a jurisdictional link on the basis of special features can exist for other (procedural) obligations too, this line of jurisprudence illustrates that cases like Al-Skeini and Jaloud could have been – and that similar cases can be – dealt with by using this jurisdictional model, i.e., by constructing a jurisdictional link on the basis of special features instead of determining whether there was sufficient control over an area or a person in order for the Convention, and thus the positive procedural obligation to investigate, to apply. But it is debatable whether this is a desirable way of working, as it means that the remnants of the Bankovic decision can remain intact and that the Court can continue to carve out highly case-specific exceptions. Instead, the Court could look to the output of other courts or human rights treaty bodies for the purpose of interpreting the notion of jurisdiction in Article 1 ECHR in a more holistic and progressive manner. It could, for example, approach the matter of the Convention’s extraterritorial application more in line with the model adopted by the HRC.825 5.2.1.4. Two alternatives: the functional model and obligations of restraint Related to the personal model, which mostly focusses on control over a person’s body, is the model based on the State’s control over a person’s rights. This is often referred to as the ‘functional model’. What makes jurisdiction functional instead of territorial or extraterritorial, is that it hinges on the impact that a State’s conduct has on a person’s ability to enjoy a given right. If a State authorises a drone strike that kills civilians at the other side of the world, they will not – under the Court’s current jurisprudence – be within the State’s jurisdiction on the basis of the spatial or personal models, as the State will likely not have exercised effective control over the area where the drone strike occurred, and the State agents’ conduct would probably not amount to authority and control over the individuals harmed as the exercise of ‘public powers’ or an instance of ‘proximate targeting’ as currently interpreted by the Court. But if 821 Id, paras 213. 822 Id, paras 215-216. 823 Id, paras 253-259. 824 Id, para. 264 and further. 825 HRC General Comment No. 36 para. 63. PROEF PS Joelle Trampert.job_08/28/2024_76B 153 the impact of the drone strike on the (rights of the) individuals is the trigger for jurisdiction, that would mean that at least some Convention rights would apply. The obligations in the ECHR can be divided and tailored; States might owe (certain) obligations under Articles 2, 3, and 5 ECHR, but not, e.g., Article 12 ECHR (the right to marry).826 This model, long advocated for by Shany,827 has been adopted by the HRC and will be discussed in more detail in Section 5.3 below.828 Other regional human rights bodies and UN treaty bodies have also embraced it.829 But besides citing it under the relevant legal framework and practice in Hanan,830 the Court has never engaged with it, despite having had ample opportunity to do so.831 Applicants832 and third-party interveners833 have also referred to it, as have some Court judges in separate opinions.834 But the Court does not seem keen to develop another, broader, basis for extraterritorial application of the ECHR, especially as this may open the proverbial floodgates for more complaints from individuals outside the Convention’s ‘legal space’. The Court has repeatedly held that Article 1 ECHR does ‘not admit of a “cause and effect” notion of “jurisdiction”’.835 This ‘cause and effect’ notion or so-called effects model is essentially the same as the functional model, albeit under a different name. Some scholars have identified the effects model as a third ground in the ECtHR’s jurisprudence, pointing to case law where the Court either factually seems to have applied such an approach, or where the Court 826 ECtHR Al Skeini para. 137. 827 See Shany (2013) 65 and further; Y Shany, ‘The Extraterritorial Application of International Human Rights Law’ (2020) 409 Collected Courses of the Hague Academy of International Law; and Y Shany, ‘Digital Rights and the Outer Limits of International Human Rights Law’ (2023) 24 German Law Journal 461. See also Ben-Naftali and Shany (2003). 828 HRC General Comment No. 36 para. 63. 829 The Environment and Human Rights, Advisory Opinion OC-23/17, Series A No. 23 (IACtHR, 15 November 2017) paras 101-103; ACmHPR General Comment No. 3 para. 14. 830 ECtHR Hanan para. 87. 831 The ECtHR (Third Section) almost did in Carter, where it focused on the control exercised by actors whose conduct was attributable to Russia over Mr Litvinenko’s life. See again paras 161 and 170. This is not so much about control over his body, as it is about control over his rights. The Chamber’s comment that this approach is limited to situations with an element of proximity can be seen as an attempt to reconcile Carter with previous jurisprudence using the personal model. But it can also be read as a cautious testing of the waters for the functional model. See M Milanovic, ‘European Court Finds Russia Assassinated Alexander Litvinenko’ (EJIL:Talk!, 23 September 2021) <https://www.ejiltalk.org/european-court-finds-russia-assassinated-alexander-litvinenko/>. However, the Grand Chamber closed the door to this in H.F. and Others. See A Pijnenburg, ‘HF and Others v France: Extraterritorial Jurisdiction without Duty to Repatriate IS-Children and their Mothers’ (EJIL:Talk!, 14 October 2022) <https://www.ejiltalk.org/hf-and-others-v-france-extraterritorial-jurisdiction-without-duty-to-repatriate-is-children-and-their-mothers/>. 832 Id, para. 120, connecting the functional model to the notion of ‘public powers’. See further S.S. et Autres, which also relies on a (more) functional approach to jurisdiction. Moreno-Lax is co-counsel for the applicants. See also Moreno-Lax (2020). 833 ECtHR H.F. and Others paras 179-181 (intervention of three UN Special Rapporteurs). 834 See Partly Dissenting Opinion of Judge Chanturia, paras 12-14, to ECtHR Georgia v Russia (II), and Concurring Opinion of Judge Bonello, paras 10-13, to ECtHR Al-Skeini. On the latter, see also T De Boer, ‘Closing Legal Black Holes’ (2014) 28(1) Journal of Refugee Studies 118, 129. 835 ECtHR Georgia v Russia (II) para. 124 (see also Partly Dissenting Opinion of Judge Pinto de Albuquerque, para. 9), referring to M.N. and Others v Belgium [GC] App No. 3599/18 (ECtHR, 5 May 2020) para. 112, Medvedyev and Others v France [GC] App No. 3394/03 (ECtHR, 19 March 2010) para. 64, and ECtHR Banković para. 75. PROEF PS Joelle Trampert.job_08/28/2024_77A 154 alluded to this model it in a more general statement of the law.836 But the fact that the Court uses the term ‘effects’ when describing the grounds for extraterritorial jurisdiction, does not mean that it has embraced an effects model. In the Ukraine and the Netherlands v Russia decision, the Court recalled that ‘[a]s regards extraterritorial jurisdiction, it is well-established case-law that acts of the States Parties performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 of the Convention.’837 It then proceeded by setting out the three grounds for extraterritorial jurisdiction as discussed above.838 The ECtHR’s spatial and personal models can easily be reconciled with, or even subsumed by, the functional model: if a person is located in an area under the State’s effective control, for example through military presence, the State will have control over at least some of the populations’ rights. When State agents detain, shoot or poison someone, the State’s control over that person’s body necessarily equates with control over their rights.839 As the Court has demonstrated, the human rights obligations in the Convention are flexible enough to align with other legal rules, including for the interpretation of the notion of jurisdiction.840 Of course, the ECtHR could use different criteria or set a higher threshold than the HRC has done thus far. But rather than relying on ‘special features’ and carving out exception after exception, a (more) functional approach would bring some coherence in the Court’s current patchwork and at times even erratic jurisprudence on extraterritorial jurisdiction. Importantly, it would mean that Contracting States would be required to secure the rights set out in the Convention irrespective of a person’s location per se. Somewhat related to the personal and the functional models, is the idea that negative obligations, i.e., duties to respect rights by refraining from interference, are not conditioned by territory or jurisdiction at all: as soon as conduct attributable to a State impacts someone’s rights, wherever they may be, that State owes them human rights obligations.841 Conversely, positive obligations conditioned by a standard of due diligence, i.e., duties to prevent third parties from infringing someone’s rights, would remain conditioned by territorial control. This idea, which has been proposed by both Pollard (albeit in relation to the ICCPR)842 and Milanovic,843 hinges on the distinction between negative and positive obligations 836 On the effects model, see A Pijnenburg, At the Frontiers of State Responsibility, Socio-economic Rights and Cooperation on Migration (diss. Tilburg 2021) Intersentia Human Rights Research Series 95, 149-152, and Berkes (2021) 46-47 and 51-52. 837 ECtHR Ukraine and the Netherlands v Russia para. 555. 838 Id, paras 559-575. 839 See again ECtHR Carter. 840 See also M Giuffré, ‘A Functional-Impact Model of Jurisdiction: Extraterritoriality Before the European Court of Human Rights’ (2021) Questions of International Law, Zoom-in 82, 53, 62 and E Papastavridis, ‘The European Convention of Human Rights and Migration at Sea: Reading the “Jurisdictional Threshold” of the Convention Under the Law of the Sea Paradigm’ (2020) 21(3) German Law Journal, 417, 420. 841 See Milanovic (2021) 1355, stating that there is ‘very little daylight between [the functional model] and the [theory] that negative duties of restraint should apply without restriction.’ 842 Pollard (2005) 361-364. 843 Milanovic (2011) 209-228 and 263. PROEF PS Joelle Trampert.job_08/28/2024_77B 155 and the State’s ability to control the conduct of its agents. The rationale for this model is that a State practically always has the choice whether or not to act, and that refraining from acting in a way that would interfere with an individual’s rights would not place any (undue) burden on States. This is obviously different for substantive positive obligations, which ‘must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.’844 This idea is supported by the text of Article 1 ECHR, which states that State parties ‘shall secure to everyone within their jurisdiction’ the rights and freedoms defined in the Convention.845 The obligation to secure human rights (a positive obligation) would be conditioned by jurisdiction, but the obligation to respect human rights (a negative obligation) would not.846 Following this model, States would always be required to refrain from killing, torturing or arbitrarily and unlawfully detaining people, but would only be required to secure these rights, i.e., prevent others from doing so, if the victim was within the State’s jurisdiction. Jurisdiction would thus remain conditioned by a State’s effective control over territory, but the negative obligations would not.847 This model does not make a strict separation between negative obligations on the one hand and all positive obligations on the other. Indeed, the condition of jurisdiction would only apply to substantive positive obligations; obligations to prevent and protect. It would not apply to procedural obligations, as these ‘exist’, in Milanovic’s words, ‘solely to make the state’s negative obligations truly effective, [and] should [therefore] apply co-extensively with the negative obligations themselves.’848 For example, the State obligation not to arbitrarily shoot a person is only really worth something if the State is also required to investigate, prosecute, and punish a State agent who does so.849 As seen above, the extraterritorial application of procedural obligations has already been confirmed in the Court’s jurisprudence. But the idea that obligations of restraint would be territorially unbound is clearly still a radical departure from the Court’s current jurisprudence.850 One of the Court’s judges has discussed this idea in a separate opinion in Georgia v Russia II, raising the question whether negative obligations should not be considered wider than positive obligations, in that they would not be limited to persons within the territory of the respondent State.851 844 For Article 2 ECHR, see ECtHR Osman para 116, repeated in Kurt para. 158. For Article 3 ECHR, see X. and Others para. 182. 845 Cf the heading of Article 1 ECHR: ‘the obligation to respect human rights’. See also Milanovic (2011) 212. 846 See also ECtHR Banković para. 65: ‘the scope of Article 1, at issue in the present case, is determinative of the very scope of the Contracting Parties’ positive obligations and, as such, of the scope and reach of the entire Convention system of human rights’ protection (…).’ [Emphasis mine] As Judge Serghides pointed out in his separate opinion in Georgia v Russia II, the applicants in Banković referred to the positive obligations flowing from Article 1 ECHR too, see Banković para. 46 and Partly Concurring Opinion of Judge Serghides, para. 13, to ECtHR Georgia v Russia (II). 847 Milanovic (2011) 215. 848 Id, 216. 849 Id. 850 Id, 211. 851 Partly Concurring Opinion of Judge Serghides, paras 11-15, 22, and 26, to ECtHR Georgia v Russia (II), concluding: if ‘breaches of negative obligations were to be examined and decided not on the basis of Article 1 PROEF PS Joelle Trampert.job_08/28/2024_78A 156 Besides the fact that this approach would require the ECtHR to deal with the notion of jurisdiction in a completely new way, the main drawback of uncoupling negative obligations from jurisdiction is that it requires a demarcation between negative and positive obligations in the first place, which is not always easy.852 Think of the prohibition of refoulement or the prohibition of authorising an arms transfer in light of the risk of a serious violation of IHRL. This also has to do with how the same conduct can be framed as both active and passive. For example, is the decision to continue allowing arms transfers an act or omission? If agents of State A acquiesce in acts of torture committed by agents of State B in (a territory under) State B’s jurisdiction, is the victim (also) within State A’s jurisdiction? This depends on how we see ‘acquiescence’ and whether the obligation at issue is negative or positive in nature. As arguments can be made for both, this approach is not immune from abuse; States could qualify the obligation in question as an obligation to prevent, in order to prevent a jurisdictional link. Finally, the demarcation can lead to arbitrary outcomes, as some obligations, such as search and rescue obligations at sea, exclusively require States to act.853 5.2.2. Refoulement, acquiescence, connivance, and complicity Having established when the Convention applies, this paragraph examines the rules and concepts used in the Court’s jurisprudence where States have been found responsible for complicity in and other contributions to serious human rights violations committed by other actors. To recall, besides the negative obligations of restraint, Articles 2, 3, and 5 ECHR impose positive obligations on States: States have a substantive duty to protect everyone within their jurisdiction, which requires them to have in place an effective legal framework and to take preventive operational measures to protect individuals from harm by others.854 States also have a procedural duty to investigate, prosecute, and punish, which has evolved into a ‘separate and autonomous’ obligation that also applies when the substantive violation occurred outside the State’s jurisdiction.855 This paragraph discusses the ECtHR’s jurisprudence on the prohibition of refoulement (5.2.2.1) and on ‘acquiescence and connivance’ (5.2.2.2), which were both but on the basis of other Convention provisions and the inherent jurisdiction of the Court, (…) that would probably be one of the most important and novel issues concerning the functioning of the Convention, the application of the principle of effectiveness and the development of the living-instrument doctrine.’ 852 Milanovic admits this too, see Milanovic (2011) 222. See for critique Moreno-Lax (2020) 386, Raible (2020) 83, 86-88, and Berkes (2021) 127. 853 Shany (2013) 62-64. 854 For Article 2 ECHR, see ECtHR Kurt paras 157 and for Article 3 ECHR, see X. and Others paras 178 and 181-183. For Article 5 ECHR, see Storck v Germany, App No. 61603/00 (ECtHR, 16 June 2005) paras 100-102 and 108 and Rantsev para. 319. 855 On Article 2 ECHR, see ECtHR Güzelyurtlu para. 189 and on Articles 3 and 5 ECHR, see Razvozzhayev v Russia and Ukraine and Udaltsov v Russia App Nos 75734/12, 2695/15, and 55325/15 (ECtHR, 19 November 2019) para. 157. Cf C Mallory, ‘A Second Coming of Extraterritorial Jurisdiction at the European Court of Human Rights?’ (2021) Questions of International Law, Zoom-in 82, 31, 46, noting that ‘[i]t is not unforeseeable that the special circumstances closely-linked to procedural obligations in Article 2 become special also for Article 3.’ PROEF PS Joelle Trampert.job_08/28/2024_78B 157 central to the ECtHR’s approach to responsibility in the extraordinary rendition cases (5.2.2.3). A final paragraph highlights a case concerning responsibility for complicity in a different context, namely in a case of inter-prisoner violence (5.2.2.4). 5.2.2.1. The prohibition of refoulement The Court read the principle of non-refoulement into Article 3 ECHR in Soering v the United Kingdom, a case which concerned the legality of the decision of the Secretary of State for the Home Department to extradite the applicant to the US, where he would likely face the death penalty and be exposed to the so-called ‘death row phenomenon’.856 Noting that the Convention did not include a ‘right not to be extradited’ and that ‘the adverse consequences of extradition [would be] suffered outside the jurisdiction of the extraditing State as a result of treatment or punishment administered in the receiving State’,857 the Court examined whether the extradition of a person that presented the risk of such adverse consequences would ‘itself engage the responsibility of a Contracting State under Article 3 [ECHR].’858 Looking to the prohibition of refoulement as codified in Article 3 CAT, which had been inspired by the jurisprudence of the European Commission of Human Rights on Article 3 ECHR,859 the Court held that: The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 [ECHR]. It would hardly be compatible with the underlying values of the Convention (…) were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3 (…), would plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article (…).860 The Court concluded that while the death penalty as such was not prohibited under the Convention,861 in the particular circumstances of Mr Soering’s case, the ‘death row phenomenon’ would amount to treatment contrary to the standards of Article 3 ECHR, which meant that the UK’s decision to extradite 856 ECtHR Soering para. 81. 857 Id, para. 85. 858 Id, para. 88. 859 JH Burgers and H Danelius, The United Nations Convention against Torture – A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 125, referring to Altun v Germany, App No. 10308/83 (decision) (ECmHR, 3 May 1983). 860 ECtHR Soering para. 88. 861 Id, para. 103. PROEF PS Joelle Trampert.job_08/28/2024_79A 158 him to the US would, if implemented, be in breach of Article 3 ECHR.862 Since Soering, the death penalty itself – not just the anticipation thereof or the method used – is always considered a form of ill-treatment, and any transfer which exposes someone to the real risk of being subjected to the death penalty is automatically in breach of Article 3 ECHR as well as Article 2 ECHR.863 As for the scope of the prohibition of refoulement under Article 3 ECHR, it applies in cases of expulsions, push-backs, and other types of removal,864 and regardless of whether the ill-treatment would be inflicted by State agents or private actors.865 In addition to Article 2 ECHR, the Court has recognised a prohibition of refoulement for Articles 4, 5, 6, 8, and 9 ECHR.866 As previously noted, the prohibition of refoulement can be qualified as a negative obligation insofar as it requires States to refrain from action that would expose someone to the risk of treatment incompatible with the Convention at the hands of another actor.867 The elements of the prohibition of refoulement and the nature of responsibility for a breach have been discussed in Chapters 2 and 3. The relevant material conduct is the removal or transfer decision, and the legally relevant link is the exposure of the person concerned to the real risk of harm as a consequence. Again, whether that harm materialises is not a determining factor in whether the prohibition of refoulement was breached. Responsibility relates to the exposure to the risk; not to the contribution to the principal violation and the ensuing harm per se. Having said that, if the transfer does significantly contribute to the commission of the principal violation and the knowledge element for complicity is also fulfilled, then the refouling State will incur responsibility for complicity in that violation ex post facto. In refoulement cases in the context of Article 3 ECHR, the State will be responsible if it knew or should have known of the real risk of treatment contrary to Article 3 ECHR.868 It is hard to say in the abstract when a risk is ‘real’, but as Mavronicola has concluded, ‘it is more than ‘mere possibility’, but less than the balance of probabilities (or ‘more likely than not’)’.869 The prohibition of refoulement is absolute, and the risk cannot be balanced against other interests.870 862 Id, para. 111. 863 See ECtHR Al-Saadoon and Mufdhi para. 120 and A.L. (X.W.) para. 64. 864 See Cruz Varas and Others v Sweden, App No. 15576/89 (ECtHR, 20 March 1991) para. 70, Hirsi Jamaa para. 134, Ilias and Ahmed v Hungary [GC] App No 47287/15 (ECtHR, 21 November 2019) para. 126, and Khasanov and Rakhmanov v Russia [GC] App Nos 28492/15 and 49975/15 (ECtHR, 29 April 2022) para. 94. 865 See H.L.R. v France [GC] 24573/94 (ECtHR, 29 April 1997) para. 40 and Al Nashiri v Poland para. 509. 866 See for Article 5, ECtHR El-Masri para. 239 (cf Othman (Abu Qatada) v the United Kingdom, App No. 8139/09 (ECtHR, 17 January 2012) paras 231-233) and for Article 6, ECtHR Soering para. 113 (no violation) and Othman paras 285 and further (violation). See for Article 4, Ould Barar v Sweden, App No. 42367/98 (decision) (ECtHR, 19 January 1999) (no violation), for Article 8, F. v the United Kingdom, App No. 17341/03 (decision) (ECtHR, 22 June 2004) (no violation), and for Article 9, Z. and T. v the United Kingdom, App No. 27034/05 (decision) (ECtHR 28 February 2006) (no violation). See also C Costello, ‘The Search for the Outer Edges of Non-refoulement in Europe: Exceptionality and Flagrant Breaches’ in B Burson and DJ Cantor (eds) Human Rights and the Refugee Definition (Brill 2016) 197. 867 See Chapter 3, Section 3.2, 3.2.3. See again Mavronicola (2021) 161. 868 Vilvarajah and Others v the United Kingdom, App Nos 13163/87, 13164/87, 13165/87, 13447/87 and 13448/87 (ECtHR, 30 October 1991) para. 107. 869 Mavronicola (2021) 188. 870 See Chapter 3, Section 3.2, 3.2.3. See also ECtHR Saadi paras 122 and 137-138 and Chahal v the United Kingdom, App No. 22414/93 (ECtHR, 15 November 1996) paras 79-81. PROEF PS Joelle Trampert.job_08/28/2024_79B 159 If diplomatic assurances – which are not legally binding – provided by the receiving State can remove the risk, then the removal decision will be in conformity with Article 3 ECHR. In his case against Macedonia, Mr El-Masri submitted that ‘the Macedonian authorities had been under an obligation, when handing him to the CIA, to assess the risk of his ill-treatment in Afghanistan and to obtain appropriate diplomatic assurances.’871 The Court took this into consideration in its conclusion that Macedonia had indeed breached the prohibition of refoulement.872 According to Egan, this creates a ‘regrettable loophole’ in the Convention’s protective scope, as it waters down the absoluteness of the prohibition of torture and refoulement.873 While the Court takes a critical stance towards assurances, they are not considered unsuitable in principle.874 In other rendition cases in which the victims were standing trial before the US military commission in Guantánamo Bay, the Court even obliged the respective respondent States to request assurances against the imposition of the death penalty, despite the applicants being outside these States’ jurisdictions for many years.875 These cases are discussed in detail in 5.2.2.3 below. 5.2.2.2. Acquiescence or connivance I now turn to the notion of ‘acquiescence and connivance’ in the ECtHR’s jurisprudence without yet focusing on the extraordinary rendition case law. Milanovic has traced the origins of this formula back to several individual applications against Turkey876 before the now defunct Commission concerning acts of violence against Kurdish people committed by private persons on Turkish territory.877 The terms ‘acquiescence’ and ‘connivance’ were first introduced by the applicant in the case of Yaşa v Turkey.878 Mr Yaşa argued that the violence against him and his uncle, who was shot dead, was part of a wider intimidation campaign, which ‘was with the connivance or acquiescence, if not involving the direct 871 ECtHR El-Masri para. 171. 872 Id, paras 215, 219-220. See also ECtHR Nasr et Ghali para. 289. 873 Egan (2019) 130-131. For others voicing concerns with the efficacy of diplomatic assurances, see M Nowak, ‘Challenges to the Absolute Nature of the Prohibition of Torture and Ill-treatment’ (2005) 23(4) Netherlands Quarterly of Human Rights 674, 683-687; L Skoglund, ‘Diplomatic Assurances Against Torture – An Effective Strategy? A Review of Jurisprudence and Examination of the Arguments’ (2008) 77 Nordic Journal of International Law 319; M Giuffré, ‘An Appraisal of Diplomatic Assurances One Year after Othman (Abu Qatada) v United Kingdom (2012)’ (2013) 2 International Human Rights Law Review 266; M Giuffré, ‘Deportation with Assurances and Human Rights: The Case of Persons Suspected or Convicted of Serious Crimes’ (2017) 15(1) Journal of International Criminal Justice 75; R Grozdanova, ‘The United Kingdom and Diplomatic Assurances: A Minimalist Approach towards the Anti-torture Norm’ (2015) 15(2) International Criminal Law Review 369. 874 ECtHR Othman paras 187-189 and 192. See also ECtHR Khasanov and Rakhmanov para. 101 and Mavronicola (2021) 190-193. 875 See ECtHR Al Nashiri v Poland paras 585-589, Al Nashiri v Romania paras 738-739, and Al-Hawsawi para. 276. 876 In 2022, the country’s name was changed from ‘Turkey’ to ‘Türkiye’, but I use the name which was used at the time of these cases. 877 Milanovic (2020) 349, 355-356 and Milanovic (2022) 222-227. 878 See Yaşa v Turkey, App No. 22495/93 (report) (ECmHR, 8 April 1997) paras 81 and 90 and Milanovic (2022) 224. PROEF PS Joelle Trampert.job_08/28/2024_80A 160 participation, of agents of the State.’879 The Commission found that there was insufficient evidence of State agent involvement or of any direct responsibility,880 and that it had not been established that Turkey had breached its (substantive) obligation under Article 2 ECHR to protect the lives of the applicant and his uncle through preventive or protective measures.881 It did find that Turkey had breached its (procedural) obligation to conduct an effective investigation into the attacks, and that this amounted to a failure to protect the right to life.882 In reaching this conclusion, the Commission stated that it recognised ‘the seriousness of the allegations being made against the authorities (…) with respect to acquiescence or connivance in a campaign of targeted attacks’, thereby referring to but not giving any specific meaning to these terms.883 A number of other cases before the Commission also concerned violence against people distributing or producing the pro-Kurdish newspaper Özgür Gündem, which allegedly supported the Workers’ Party of Kurdistan (PKK). Here too, the applicants referred to the authorities’ acquiescence or connivance in the attacks,884 and in the case of Ersöz and Others, the applicants claimed that ‘the distribution of Özgür Gündem has been prevented by arson attacks, murder and threats, on some occasions in circumstances which indicate the complicity or acquiescence of the Turkish authorities.’885 In Ersöz and Others, the Commission did not pronounce on the State’s acquiescence or connivance,886 but in Kiliç and Kaya it did.887 Indeed, in Kaya, the Commission found that while it was not established ‘beyond reasonable doubt’ that the applicant’s brother and his friend – both ‘educated, professional, intellectual Kurds (…) under surveillance by the authorities’888 – were killed by former PKK members who now acted under the direction or with the knowledge of the State, ‘there is a significant body of evidence which supports a strong suspicion of connivance or knowledge by some elements of State security or intelligence agencies.’889 Then, under its analysis of the State’s positive substantive obligations under Article 2 ECHR,890 the Commission concluded that: [T]he applicant's brother fell into a category of people who were at risk from unlawful violence from targeting by State officials or those acting on their behalf or with their connivance or acquiescence. In 879 Id. See also ECmHR Yaşa paras 4 and 25. 880 Id, para. 94. 881 Id, para. 100. 882 Id, para. 107. 883 Id, para. 106. [Emphasis mine] See also Milanovic (2022) 225. 884 Ersöz and Others v Turkey, App No. 23144/93 (report) (ECmHR, 29 October 1998) paras 29, 30 and 33, Kılıç v Turkey, App No. 22492/93 (report) (ECmHR, 23 October 1998) paras 4, 48, and 171, and Kaya v Turkey, App No 22535/93 (report) (ECmHR, 23 October 1998) paras 4 and 271. Milanovic has pointed out that the applicants in these cases were represented by the same lawyers. See Milanovic (2022) 224. 885 ECmHR Ersöz and Others v Turkey para. 33. 886 Save in reference to a government report on the bombing of the Özgür Gündem in Istanbul, see ECmHR Ersöz v Turkey paras 40, 90, 142, and in reference to the allegations of the applicants, see paras 115 and 149. 887 ECmHR Kiliç paras 188-189, 222, 227, 229-230, and ECmHR Kaya paras 336, 355, 360, 362-363. 888 ECmHR Kaya para. 41. 889 Id, para. 336. 890 Id, paras 342-350. See also ECmHR Kiliç paras 209-217. PROEF PS Joelle Trampert.job_08/28/2024_80B 161 respect of this risk, the applicant's brother did not enjoy the guarantees of protection required by the rule of law.891 Thus, after concluding that the conduct constituting the violations could not be attributed to Turkey, the Commission considered whether Turkey had failed to take preventive and protective measures, in the context of which it made reference to the authorities’ acquiescence or connivance.892 Following these individual applications, the notion next appeared in Cyprus v Turkey, where it was referenced by the applicant State893 and the Court.894 The Court probably mentioned it in relation to positive obligations, but it is hard to tell, as its wording is imprecise and the test for jurisdiction is not clearly separated from the matter of attribution.895 It did also not apply it to the facts of the case.896 Milanovic has identified three categories of judgements after Cyprus v Turkey where the ‘acquiescence or connivance’ formula has been used: cases where it is only mentioned in reference to earlier case law;897 a number of cases concerning hate crimes; and a number of cases concerning extraordinary renditions.898 As for the hate crimes cases, these all concern acts of violence committed by private parties with the acquiescence or connivance of State officials against religious minorities, LGBT+ people, or women.899 In Begheluri and Others v Georgia, the first of these cases, the applicants complained that Georgia was responsible for the ill-treatment they had been subjected to and for failing to fulfil its positive obligations.900 They did not refer to ‘acquiescence’ or ‘connivance’, but claimed 891 Id, para. 363. See also ECmHR Kiliç para. 230. 892 See Milanovic (2020) 356 and Milanovic (2022) 225-226. 893 Cyprus v Turkey [GC] App No 25781/94 (merits) (ECtHR, 10 May 2001) paras 73, 265 and 319, and Cyprus v Turkey [GC] App No 25781/94 (just satisfaction) (ECtHR, 12 May 2014) para. 61: ‘In their application of 25 November 2011, the Cypriot Government requested the Court to adopt a “declaratory judgment” stating: “(i) that Turkey is required by Article 46 to abide by the judgment in Cyprus v. Turkey by abstaining from permitting, participating or acquiescing or being otherwise complicit in, the unlawful sale and exploitation of Greek Cypriot homes and property in the northern part of Cyprus; (…)”.’ [Emphasis mine] 894 ECtHR Cyprus v Turkey (merits) paras 81, 130-131, 346 and 376, and Cyprus v Turkey (just satisfaction) para. 63. See also Milanovic (2020) 356. 895 Milanovic (2020) 350 and 356 and Milanovic (2022) 223 and 227. See also V Stoyanova, ‘Causation between State Omission and Harm within the Framework of Positive Obligations under the European Convention on Human Rights’ (2018) 18 Human Rights Law Review 309, 319. 896 ECtHR Cyprus v Turkey (merits) 81, 130, and 346, and Milanovic (2020) 356 and Milanovic (2022) 227. 897 See Ilaşcu para. 318. See also Milanovic (2020) 357. 898 Milanovic (2020) 357 and Milanovic (2022) 227-229. 899 See again Milanovic (2020) 357 and Milanovic (2022) 228-229, referring to ‘a cluster of four cases dealing with hate-motivated crimes, two of which dealt with Jehovah’s Witnesses in Georgia, and two with members of the LGBT community in Georgia and Romania.’ These cases are Begheluri and Others v Georgia, App No. 28490/02 (ECtHR, 7 October 2014) paras 98, 111-112, 118-121, 145, 163-165, 174; Tsartsidze and Others v Georgia, App No. 18766/04 (ECtHR, 17 January 2017) paras 5, 78, and 86-87 (citing Begheluri); Identoba and Others v Georgia, App No. 73235/12 (ECtHR, 12 May 2015) para. 77 (citing Begheluri); and M.C. and A.C. v Romania, App No. 12060/12 (ECtHR, 12 April 2016) para. 124 (citing Identoba. See also para. 125). The subcategory of cases dealing with domestic violence against women can be added to these cases, namely Tkhelidze v Georgia, App No. 33056/17 (ECtHR, 8 July 2021) para. 51; A. and B. v Georgia, App No. 73975/16 (ECtHR, 10 February 2022) para. 45; and Gaidukevich v Georgia, App No. 38650/18 (ECtHR, 15 June 2023) para. 62. 900 ECtHR Begheluri paras 3, 6, 8, and 86. In other words, they alleged that Georgia had breached its negative (through attribution of State agent conduct) and positive obligations under Article 3 ECHR. PROEF PS Joelle Trampert.job_08/28/2024_81A 162 that the scale of violence against the Jehovah’s Witness community, the personal involvement of police officers and other officials in some instances, and ‘the total failure on the part of the relevant State authorities to prevent or stop the assaults and thereafter to prosecute those responsible, was undoubtedly indicative of the State’s complicity.’901 With respect to one incident, the Court noted that it was ‘necessary (…) to consider the part played by the (…) police and other State agents in the violent attack complained of and to determine the extent of their complicity in the violence.’902 The Court then concluded: [T]he attack concerned would have been impossible without the involvement, connivance, or at least acquiescence of the competent authorities. The fact that the (…) police were present throughout that time in and around the village of Rokhi but did nothing to put an end to the violence, only underlines their responsibility. (…) As the Government submitted no evidence capable of refuting the applicants’ allegations, it must be found to be established that the (…) police officers directly participated in the attack (…). Consequently, the responsibility for the matters complained of lays with the authorities in question. (…) [T]here has been a violation of Article 3 of the Convention in its substantive aspect. 903 The Court first referred to the Georgian authorities’ involvement, connivance, or ‘at least acquiescence’, then to their failure to prevent, and then to their direct participation. The conclusion on the violation of Article 3 ECHR in its substantive aspect could include the negative obligation and/or the substantive positive obligations to prevent and protect. Of course, these are not mutually exclusive; State agents can directly participate in, and connive in, and fail to prevent acts of violence committed by other actors. In most parts of this judgement referring to State agent acquiescence or connivance, the formula is mentioned with reference to Georgia’s failure to fulfil its positive obligations under Article 3 ECHR.904 But regarding one incident where police officers were present but turned a blind eye to the abuses, the Court concluded that ‘the violations are imputable to the respondent State on account of the Government agents’ failure to protect the applicants. Hence, the Court finds a violation of Article 3 of the Convention under it substantive head’.905 This reference to attribution in the context of positive obligations is slightly confusing, but overall, this case makes clear that acquiescence and connivance in acts of violence that reach the severity threshold of ill-treatment results in responsibility for involvement beyond a mere failure to intervene. 901 Id, para. 95. 902 Id, para. 109. 903 Id, paras 111-112. [Emphasis mine] 904 Id, paras 98 (under ‘general principles’), 118-121 (concluding that there had been a violation of Article 3 ECHR ‘in its substantive aspect on account of the facilitation of and subsequent failure to prevent’), 145 (also noting the ‘obvious unwillingness to ensure the prompt and fair prosecution and punishment of those responsible’, which resulted in a breach of Article 3 ECHR under its procedural head), 163-165, and 174 (dealing with the alleged breaches of Article 14 ECHR). See also Milanovic (2022) 228. 905 Id, para. 127. PROEF PS Joelle Trampert.job_08/28/2024_81B 163 In Identoba and Others v Georgia, decided not long after Begheluri and by the same Chamber, the Court held that an investigation into violent attacks against peaceful protestors by radical counter-demonstrators at a march for the International Day against Homophobia (IDAHO) in Tbilisi in 2012 required a meaningful inquiry into the discriminatory motives behind the attacks. Without this, ‘prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes.’906 This is the first time that the Court equated a failure to investigate discriminatory motives with acquiescence or connivance in the crimes.907 This has been repeated in other cases concerning violent hate crimes,908 including in Women’s Initiatives and Others, which also concerned attacks against demonstrators at the IDAHO event in Tbilisi in 2013.909 As in Identoba,910 the police had not provided due protection to the protestors, despite this being requested prior to the march.911 But where in 2012 the authorities failed to intervene, in 2013 they went further, encouraging and helping the counter-demonstrators to break though the police cordon and attack the protestors912 and in one case mistreating one applicant themselves.913 Police officers had humiliated this applicant by shaving off his beard, supposedly to ‘disguise him’ in order for him to safely leave the supermarket where he had been hiding, all the while making homophobic remarks and filming him. The applicants in Women’s Initiatives submitted that besides failing to protect them and failing to investigate afterwards, Georgia had violated their rights under Articles 3 and 14 ECHR due to ‘the authorities’ 906 ECtHR Identoba para. 77. See also paras 78-81. 907 See ECtHR Begheluri para. 173, where the Court stated that ‘[t]reating religiously motivated violence and brutality on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention.’ See also Nachova and Others v Bulgaria para. 158, where the Court held that ‘treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention’. [Emphasis mine] Similarly, however, there is a well-established body of case law where the Court has held that a prompt investigation into deprivations of life or ill-treatment is essential in ensuring public confidence in the authorities’ maintenance of the rule of law and in preventing any ‘appearance of collusion in or tolerance of unlawful acts’. See again, e.g., Women’s Initiatives para. 62, Hanan para. 207, Begheluri para. 99, and El-Masri para. 192. As my research focused on substantive obligations and violations, I have not looked into this any further, but the relationship between a failure to investigate and State collusion is apparent from other cases too, including in other human rights systems. See also L Guercke, Protecting Victims of Disappearances Committed by Organised Criminal Groups: State Responsibility in International Human Rights Law and the Experiences of Human Rights Practitioners in Mexico (diss. KU Leuven 2021) 118-120. 908 ECtHR M.C. and A.C. paras 113 and 124 and Tkhelidze para. 51. 909 ECtHR Women’s Initiatives para. 63. See further paras. 64-67. 910 ECtHR Identoba para. 73. 911 ECtHR Women’s Initiatives para. 8 and further. 912 Id, paras 19-21. 913 Id, paras. 28-30. PROEF PS Joelle Trampert.job_08/28/2024_82A 164 connivance in the counter-demonstrators’ hostility towards the IDAHO event.’914 After establishing that the obligation to take operational preventive measures had been triggered,915 the Court examined ‘the degree of official acquiescence or connivance in the acts of private individuals’, i.e., the radical counter-demonstrators.916 First, there was evidence that the police had in some places opened the cordon and in others remained passive as the counter-demonstrators broke through it.917 Second, it was possible that ‘the unprecedented scale of violence (…) was conditioned, at least in part, by the domestic authorities’ failure to secure a timely and objective criminal investigation and punishment of the perpetrators of comparatively less violent attacks on the LGBT community during the previous year’s IDAHO event’. In addition, the ‘passivity of the authorities in the face of the violent acts committed [in] 2013 is regarded as having contributed to the subsequent proliferation (…) of hate crimes against the LGBT community’.918 Third, the Court confirmed that the beard-shaving incident was in breach of the State’s negative obligations.919 The Court concluded: In the light of the foregoing, having regard to the respondent authorities’ failure to effectively take operational preventive measures aimed at protecting the IDAHO event from the violent counter‑demonstration, the indications of official acquiescence, connivance and even active participation in individual acts motivated by prejudice, the Court concludes that there has been a violation of Article 3 under its substantive limb read together with Article 14 of the Convention.920 It is not entirely clear what the Court meant by ‘active participation’ here. On the one hand, it might have wanted to hold Georgia responsible for its complicity in all the abuses committed against the protestors, as Georgian police officers and senior State officials had not just stood idly by, but had verbally and physically encouraged and facilitated the violent counter-demonstrators in their attacks. On the other hand, the ‘active participation’ might relate only to the beard-shaving incident, and not to the totality of the State’s conduct throughout that day. That incident concerned the active conduct of State agents, which was an attributable breach of Georgia’s negative obligations under the ECHR. In all these cases, and especially in Women’s Initiatives and Begheluri, the Court has used the ‘acquiescence or connivance’ formula to give expression to State conduct in connection with violations committed by NSAs which goes beyond a mere failure to prevent the violations and protect the victims ex ante and/or to investigate the violations and punish the perpetrators ex post. This is also the case for 914 Id, para. 50. See also paras 51-52. Cf para. 47: the applicants complained that ‘the violent attacks perpetrated by the counter-demonstrators on 17 May 2013 were imputable to the respondent State which, moreover, had failed to investigate effectively the incident by establishing, in particular, the discriminatory motive of the attackers.’ [Emphasis mine] 915 Id, paras 70-74. 916 Id, paras 70 and 75 and further. 917 Id, para. 75. 918 Id, para. 76. 919 Id, para. 77. 920 Id, para. 78. [Emphasis mine] PROEF PS Joelle Trampert.job_08/28/2024_82B 165 the final subcategory of judgements, concerning violations of Articles 2 and 14 ECHR in situations of domestic violence, although these cases do not further expand the content of this notion.921 Because acquiescence or connivance is practically always mentioned in relation to positive obligations, it is surprising that the Court’s Guide on Article 3 ECHR does not mention it under the heading of the positive obligations, but rather under the heading of the negative obligation, which is entitled ‘The prohibition of torture, inhuman or degrading treatment or punishment, inflicted or facilitated by State agents.’922 What did the author of the Guide mean by ‘facilitated by State agents’ here? Is this supposed to cover the minimum level of State involvement required by the Torture Convention, which includes consent or acquiescence as part of the definition?923 Or did the author mean to say that States are under two related yet distinct negative obligations, i.e., the duty not to inflict torture and the duty not to facilitate it? To complicate matters further, the Guide’s two paragraphs under this heading (one relates to direct responsibility, the other to State acquiescence) have been copy-pasted from the ECtHR’s judgement in Chernega and Others v Ukraine, which concerned attribution of conduct, namely of a security company owned by the municipality to the Respondent State.924 Likely, the author of the Guide had the Torture Convention’s definition of torture in mind, as opposed to any independent obligations. However, the latter is not impossible either. Recall, e.g., how the ILC has interpreted the negative obligation to refrain from conduct which constitutes crimes against humanity as a prohibition of committing crimes against humanity and assisting in the commission of crimes against humanity.925 On the basis of how the formula has been used in the extraordinary rendition cases in particular, Milanovic has qualified acquiescence or connivance as an ECHR-specific complicity rule.926 This is the focus of the next paragraph. 5.2.2.3. The ECtHR’s approach to responsibility in the extraordinary rendition cases 921 In Tkhelidze the ‘acquiescence or connivance’ formula is only mentioned under the general principles in reference to Identoba, and in A. and B. the Court noted that the failure of the domestic courts to consider the potential acquiescence or connivance of the police in the abuses committed by their colleague against his partner did ‘not sit well with the respondent State’s heightened duty to tackle prejudice-motivated crimes.’ This was repeated in Gaidukevich, where the Court found the State responsible for procedural and substantive violations of Article 2 ECHR, although not specifically for acquiescence or connivance in the death of the applicant’s daughter. See ECtHR Tkhelidze para. 51, ECtHR A. and B. para. 45, and ECtHR Gaidukevich para. 62. It is worth noting that the applicants in these three cases were represented by the same core team of lawyers. 922 Council of Europe/European Court of Human Rights, Guide on Article 3 of the European Convention on Human Rights, Prohibition of torture, updated 31 August 2023, para. 29. The text of this paragraph does not tell us anything new. It reads as follows: ‘Linked to the above, the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of others within its jurisdiction may engage that State’s responsibility under the Convention (Chernega and Others v. Ukraine, 2019, § 127).’ 923 See again Article 1 CAT. See also Mavronicola (2021) 80, pointing out that ‘the ECtHR had only made findings of torture in cases of infliction – and not of instigation, consent or acquiescence – by State officials.’ 924 Chernega and Others v Ukraine, App No. 74768/10 (ECtHR, 18 June 2019) para. 126. 925 See again ILC Commentary draft Article 3 DACAH, para. 6. 926 Milanovic (2020) 366 and Milanovic (2022) 237. PROEF PS Joelle Trampert.job_08/28/2024_83A 166 The analysis here is limited to the Court’s findings on the substantive aspects of Articles 3 and 5 ECHR; the parts of the judgements relating to the procedural obligations and to Articles 8 and 13 ECHR have been excluded. Before focusing on the Court’s findings, it is worth recalling the facts. The Court rendered its first judgement concerning Council of Europe member State involvement in the extraordinary rendition programme in 2012. This was the case of Mr El-Masri, a German citizen who was apprehended at the Serbian-Macedonian border because of an alleged irregularity with his passport. He was questioned by border officials about his supposed ties with Islamic terror groups and was taken to a hotel in Skopje by armed men in civilian clothing, where he was detained incommunicado for over three weeks.927 During his detention in the hotel room, he was watched and interrogated continuously by Macedonian security guards, and when he tried to leave, he was threatened at gunpoint.928 Handcuffed and blindfolded, he was subsequently taken to Skopje airport, where he was severely beaten and abused by the CIA ‘rendition team’. He was stripped, dressed in an adult nappy and tracksuit, hooded, shackled, and, again, blindfolded, and marched to a waiting aircraft, which was surrounded by armed Macedonian security guards.929 He was thrown to the floor of the aircraft, chained and drugged, and flown to Afghanistan, where he suffered further detention and torture for another four months.930 He was then reverse-rendered back to Germany, as the CIA had mistaken his identity.931 Save the mistaken identity, the case of Mr Nasr (also known as Abu Omar) is similar to the case of El-Masri. While on his way to the mosque, Mr Nasr, who lived in Milan, Italy, was stopped by an unknown person in civilian clothing (later identified as an agent of the carabinieri). This person presented himself as a police officer and asked to see Mr Nasr’s identity card and residence permit, which he pretended to check using his mobile phone. Mr Nasr was suddenly grabbed by several unknown persons and violently dragged into a white van parked nearby. After being beaten, tied, and hooded, he was driven at high speed to Aviano air base, where he was stripped, dressed in other clothes, and blindfolded. Via Ramstein air base in Germany, he was rendered to Cairo, Egypt, where he was detained and tortured for four years.932 While Italy had instituted criminal proceedings against the aforementioned police officer, over twenty American agents, and agents of the Italian military security service (servizio per le informazioni e la sicurezza militare, or SISMi), the American agents had been convicted in absentia and the SISMi agents’ conviction had been annulled due to state secrets.933 927 ECtHR El-Masri paras 17 and 20. 928 Id, paras 18 and 200. 929 Id, paras 20-21 and 205. 930 Id, paras 24-29, 33. 931 Id, paras 31-33 and 128. This was not the only case of mistaken identity; see A Vedaschi, ‘Extraordinary Renditions – a Practice Beyond Traditional Justice’ in E Guild, D Bigo, and M Gibney (eds) Extraordinary Rendition – Addressing the Challenges of Accountability (Routledge 2018) 94 and 113, fn 42. 932 ECtHR Nasr et Ghali paras 10-13, 23, 112, and 222. 933 Id, para. 265 and further. See also A Vedaschi, ‘State Secret Privilege versus Human Rights: Lessons from the European Court of Human Rights Ruling on the Abu Omar Case’ (2017) 13(1) European Constitutional Law Review 166, 168-174 and Vedaschi (2018) 105-106. PROEF PS Joelle Trampert.job_08/28/2024_83B 167 Whereas El-Masri and Nasr were abducted in and transferred from Macedonia and Italy to a detention site in another country,934 Mr Al Nashiri and Mr Husayn (also known as Abu Zubaydah) were abducted in third countries and rendered via Thailand to Poland for the purpose of being detained and interrogated there. Both were the first ‘high value detainees’ to be held at a ‘black site’ in Europe.935 Besides the fact that their transfer and detention was entirely extrajudicial, they were subjected to ‘enhanced interrogation techniques’936 or ‘debriefed’.937 Their mistreatment at the black site in Poland amounted to torture.938 When the Polish site closed, the detainees were transferred to other locations. Al Nashiri was brought to Romania, Abu Zubaydah was transferred to Lithuania.939 In two judgements delivered simultaneously in 2018, the Court found that there was no evidence that the applicants had been subjected to enhanced interrogation techniques, i.e., torture, but that their detention conditions did amount to ‘inhuman treatment’ under Article 3 ECHR.940 After these sites also closed, both men were eventually transferred to Guantánamo Bay, where they remain in detention to this day.941 Al-Nashiri is facing capital charges.942 Abu Zubaydah has never been charged.943 In January 2024, the Court handed down judgement in the case of Al-Hawsawi against Lithuania. This applicant is also still detained in Guantánamo Bay, where he is currently standing trial before a military commission which permits no communication with the outside world.944 Still, the Court was able to establish the facts on the bases of previous cases, especially the case of Abu Zubaydah v Lithuania.945 Similar to aforementioned applicants, Mr Al-Hawsawi was captured in a third country and taken into CIA custody and detained at several secret detention sites, including in Lithuania, from where he was rendered to Guantánamo Bay. After exhausting domestic remedies in Lithuania, NGOs Redress and the Human Rights Monitoring Institute submitted a complaint to the ECtHR in December 2016, which was communicated to the respondent State in January 2019. In its judgement, the Court confirmed that Mr Al-Hawsawi had been tortured in an earlier period of his detention, but that there 934 Although El-Masri was held in a hotel room in Skopje for three weeks prior to his transfer to the CIA, this was not a black site. See also C Black, ‘Foreign “Liaison Partners”’ in E Guild, D Bigo, and M Gibney (eds) Extraordinary Rendition – Addressing the Challenges of Accountability (Routledge 2018) 56 and 59, table 3.3. 935 See Black (2018) 60-61 and 64. 936 ECtHR Al Nashiri v Poland paras 416 and 417(3). 937 ECtHR Abu Zubaydah v Poland paras 416-418 and 419(3). 938 ECtHR Al Nashiri v Poland paras 511-516 and Abu Zubaydah v Poland paras 504-511. 939 ECtHR Al Nashiri v Romania para. 105 and further, and Abu Zubaydah v Lithuania para. 102 and further. 940 ECtHR Al Nashiri v Romania paras 670-675 and Abu Zubaydah v Lithuania paras 634-640. 941 See again ‘The Guantánamo Docket’, The New York Times, updated 12 February 2024 <https://www.nytimes.com/interactive/2021/us/guantanamo-bay-detainees.html> accessed 14 February 2024. 942 ECtHR Al Nashiri v Romania paras 152-156. 943 See again the Opinion adopted by the UN Working Group on Arbitrary Detention, Opinion No. 66/2022 concerning Zayn al-Abidin Muhammad Husayn (Abu Zubaydah) (United States of America, Pakistan, Thailand, Poland, Morocco, Lithuania, Afghanistan and the United Kingdom of Great Britain and Northern Ireland) UN Doc A/HRC/WGAD/2022/66, 6 April 2023 (advance edited version) para. 51. 944 ECtHR Al-Hawsawi para. 5. 945 Id, paras 6-7. PROEF PS Joelle Trampert.job_08/28/2024_84A 168 was no evidence that he had been subjected to ‘enhanced interrogation techniques’ at the black site in Lithuania.946 His treatment had reached the severity threshold of Article 3 ECHR.947 On the one hand, Poland, Romania, and Lithuania went further than Macedonia and Italy in their participation in the extraordinary rendition programme, in that they hosted actual black sites. On the other hand (and especially compared to Macedonia), Polish, Romanian, and Lithuanian agents did probably not witness any acts of torture or ill-treatment, as the detention centres were entirely in the hands of the CIA.948 The knowledge element is discussed separately in 5.2.3.2 below, but for now it suffices to say that the Court did not accept that these States were unaware of what was going on within their territory. It is also worth noting, as the US Senate Select Committee on Intelligence concluded in its 2014 report, that the CIA ‘provided millions of dollars in cash payments to foreign government officials. CIA Headquarters encouraged CIA Stations to construct “wish lists” of proposed financial assistance to [phrase redacted] [entities of foreign governments], and to “think big” in terms of that assistance’, in order to encourage these governments to host the black sites.949 Reportedly, Poland received such payments,950 and the ECtHR confirmed that Romania and Lithuania did too.951 The Court also noted reports that Romania and Lithuania obtained NATO membership in this period.952 Whatever the incentives of these and other European States may have been for participating in the rendition programme, the goal of the US, in its ‘war on terror’, was to keep individuals outside its jurisdiction, as that way, it was believed, it could subject them to appalling human rights violations outside the purview of US law. This is exactly why the black sites were secret, and why those suspected of terrorism related activities were rendered from State to State extrajudicially. While the ECtHR’s judgements are not a model of clarity on each and every point of law, this does not diminish the importance of the fact that a court has delivered binding judgements holding States responsible for their involvement in the commission of the most egregious human rights violations which they – it goes without saying – could themselves not commit. But despite the achievement of the ECtHR and of all the people who contributed to these cases being heard in Strasbourg in the first place, the principal actor(s), i.e., the US, individual government officials, and those who carried out acts of torture, are yet to be held to account, and the harm suffered by the ‘other victims’ of 9/11 cannot be repaired. 946 Id, paras 153-154. See also para. 156. 947 Id, paras 209-213. 948 ECtHR Al Nashiri v Poland para. 517, Abu Zubaydah v Poland para. 512, Al Nashiri v Romania para. 677, Abu Zubaydah v Lithuania para. 642, and Al-Hawsawi para. 216. 949 Report of the US Senate Select Committee on Intelligence, ‘Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program’ with Foreword by Chairman Feinstein and Additional and Minority Views, S. Rept. 113-288, 9 December 2014, conclusion 20. See also Black (2018) 65 and 82, fn 70. 950 See J Pomfret, ‘We asked Poland to hide our black sites. Then we left it hanging.’ The Washington Post, 29 October 2021 <https://www.washingtonpost.com/outlook/we-asked-poland-to-hide-our-black-sites-then-we-left-it-hanging/2021/10/29/d1b85ae4-381a-11ec-9bc4-86107e7b0ab1_story.html>. 951 ECtHR Al Nashiri v Romania paras 548-549 and Abu Zubaydah v Lithuania para. 557. 952 ECtHR Al Nashiri v Romania paras 301 and 571 and Abu Zubaydah v Lithuania para. 554. PROEF PS Joelle Trampert.job_08/28/2024_84B 169 5.2.2.3.1. The prohibition of refoulement In its assessment of Macedonia’s responsibility for violations of El-Masri’s rights under Articles 3 and 5 ECHR – the first judgement on a Contracting State’ responsibility for involvement in the extraordinary rendition programme – the Court made a distinction between three separate phases: El-Masri’s ill-treatment and detention in the hotel, his ‘capture shock’ treatment at the airport (for Article 3 ECHR), and his removal to Afghanistan. The Court applied the prohibition of refoulement to Macedonia’s conduct in this third phase and found it responsible for transferring El-Masri to the US authorities, thereby knowingly exposing him to the real risk of ill-treatment and to conditions of detention contrary to Article 3 ECHR.953 Besides noting that the transfer was entirely extrajudicial, that the Macedonian authorities had knowledge of where the applicant would be flown, and that they had not sought any assurances from the US authorities, the Court found that credible sources in the public domain had reported on ‘practices that have been resorted to or tolerated by the US authorities (…) that are manifestly contrary to the principles of the Convention’, and that this information was readily available prior to El-Masri’s transfer.954 This proved that: [T]here were serious reasons to believe that if the applicant was to be transferred into US custody under the “rendition” programme, he would be exposed to a real risk of being subjected to treatment contrary to Article 3. Consequently, it must be concluded that the Macedonian authorities knew or ought to have known, at the relevant time, that there was a real risk that the applicant would be subjected to treatment contrary to Article 3 of the Convention.955 Some scholars have highlighted the fact that the Court applied the principle of non-refoulement to a transfer within a State’s territory (Macedonian agents handed El-Masri over to American custody at Skopje airport),956 but as this still qualifies as a transfer from one jurisdiction to another, this is probably of limited significance. It is worth noting here that while the Court applied the usual standard of constructive knowledge, Macedonia’s knowledge was presumed; given all the credible information in the public domain, it would have been impossible for Macedonia not to have been aware of the extraordinary rendition programme and that the transfer at Skopje airport was part of it. The Court concluded on this point that El-Masri’s transfer had been an extraordinary rendition.957 As for his subsequent unlawful and arbitrary detention in Afghanistan, the Court held that ‘it should have been clear to the Macedonian authorities that, having been handed over into the custody of the US authorities, 953 ECtHR El-Masri para. 220. 954 Id, paras 216-219, quote from para. 218. 955 Id, para. 218. 956 M den Heijer, ‘El Masri t Voormalige deelrepubliek Macedonië’ JV 2013/111 afl. 5, para. 6 (Dutch case note on El-Masri) and Egan (2019) 95. 957 ECtHR El-Masri para. 221. PROEF PS Joelle Trampert.job_08/28/2024_85A 170 the applicant faced a real risk of a flagrant violation of his rights under Article 5 [ECHR]’.958 This marks the first time that the Court found a breach of the prohibition of refoulement in relation to this provision. Much of this was repeated in Nasr et Ghali (2016). However, unlike Mr El-Masri, Mr Nasr was not, strictly speaking, transferred by Italian agents to the CIA, despite the Court saying exactly this in its analysis of the violations of Article 5 ECHR.959 The case did concern an extraordinary rendition by the CIA to Egypt from Italian territory and with the help of Italian officials. The Court held that given Italy’s knowledge of the extraordinary rendition programme and its involvement in Mr Nasr’s abduction and transfer, Italy had exposed him to the proven risk of treatment incompatible with Article 3 ECHR.960 It then added that Italy had the obligation under Articles 1 and 3 ECHR to take appropriate measures – i.e, a positive obligation – to ensure that the applicant would not be subjected to torture or ill-treatment, especially given his refugee status.961 In the cases against Poland (2014), Romania (2018), and Lithuania (2018 and 2024), the countries which hosted black sites, the Court concluded that ‘the possibility of a breach of Article 3 was particularly strong and should have been considered intrinsic in the transfer’, and that as consequence, ‘enabling the CIA to transfer the applicant to its other secret detention facilities (…) exposed [the applicant] to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention.’962 This was repeated in relation to the substantive breach of Article 5 ECHR.963 The Court thus appears to have combined the prohibition of refoulement with the notion of facilitation: by enabling the transfer, States exposed individuals to the foreseeable serious risk of further violations of their rights. 5.2.2.3.2. Acquiescence, connivance, and complicity The States involved in the rendition programme were also found responsible for their acquiescence, connivance, and complicity in the serious human rights violations committed in this context. The Court did not apply the general complicity rule as laid down in Article 16 ASR in its analysis, but did reference the rule under the heading of the applicable law.964 Starting with El-Masri, the Court concluded that Macedonia was ‘to be held responsible for the inhuman and degrading treatment to which the applicant 958 Id, para. 239. Note the additional criterion that the violation must be flagrant. 959 ECtHR Nasr et Ghali para. 302 (‘sa remise aux autorités américaines’). See also V Pergantis, ‘Nasr v Italy’ (2016) 110(4) American Journal of International Law 761, 763, fn 8. 960 ECtHR Nasr et Ghali para. 288. 961 Id, para. 289. For Milanovic, this case ‘is so totally unclear with regard to the conceptual basis of [the Court’s] reasoning that its precedential value can (…) safely be discounted.’ See Milanovic (2022) 234. Cf Vedaschi (2018) 105-106. 962 ECtHR Al Nashiri v Poland para. 518, Abu Zubaydah v Poland para. 513, Al Nashiri v Romania para. 678, Abu Zubaydah v Lithuania para. 643, and Al-Hawsawi para. 217. 963 ECtHR Al Nashiri v Poland para. 531, Abu Zubaydah v Poland para. 525, Al Nashiri v Romania para. 691, Abu Zubaydah v Lithuania para. 657, and Al-Hawsawi para. 229. 964 ECtHR El-Masri para. 97, Al Nashiri v Poland para. 207, Abu Zubaydah v Poland para. 201, Nasr et Ghali para. 185, Al Nashiri v Romania para. 210, and Abu Zubaydah v Lithuania para. 232. See also Al-Hawsawi para. 107, referring to Abu Zubaydah v Lithuania paras 220-50, including aforementioned para. 232. PROEF PS Joelle Trampert.job_08/28/2024_85B 171 was subjected while in the hotel, for his torture at Skopje Airport and for having transferred the applicant into the custody of the US authorities’.965 With respect to El-Masri’s ill-treatment in the hotel (and, as already discussed, his transfer to the CIA) this formulation makes perfect sense: the conduct in contravention of the Convention, i.e., the obligations to refrain from inflicting torture or ill-treatment and from exposing someone to a real risk of torture or ill-treatment, is attributable to the State, as Macedonian agents committed these acts. It is not entirely clear why the Court also held Macedonia responsible for the acts of torture (the ‘capture shock’ treatment) at the airport, as they were not inflicted by Macedonian agents, but by the CIA. The Court framed the question of Macedonia’s responsibility in terms of attribution from the start: The Court must firstly assess whether the treatment suffered by the applicant at Skopje Airport at the hands of the special CIA rendition team is imputable to the respondent State. In this connection it emphasises that the acts complained of were carried out in the presence of officials of the respondent State and within its jurisdiction. Consequently, the respondent State must be regarded as responsible under the Convention for acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities (see Ilaşcu and Others v. Moldova and Russia (…)).966 Milanovic has observed that the Court’s reference to Ilascu here is ‘a slight sleight of the judicial hand’, as in Ilascu, ‘acquiescence or connivance’ was mentioned with respect to conduct of NSAs, not of foreign State agents.967 In Ilascu this formula was also not used in any meaningful way, let alone as a basis for attribution of conduct.968 But the way in which the Court formulated its analysis in El-Masri gives the impression that it found Macedonia responsible for the CIA’s acts of torture, as these were committed in the presence of and with the acquiescence and connivance of Macedonian State officials. Regarding El-Masri’s treatment at the airport: The Court notes that the (…) measures were used in combination and with premeditation, the aim being to cause severe pain or suffering in order to obtain information, inflict punishment or intimidate the applicant (…). In the Court’s view, such treatment amounted to torture in breach of Article 3 [ECHR]. The respondent State must be considered directly responsible for the violation of the applicant’s rights 965 ECtHR El-Masri para. 223. 966 Id, para. 206. [Emphasis mine] One of the third-party interveners, Interights, had also referred to the ‘acquiescence or connivance’ formula, as well as responsibility for ‘accessory responsibility’. See para. 176. 967 Milanovic (2022) 230, but as Nollkaemper has pointed out, ‘there is no compelling reason’ to differentiate between a State’s responsibility for failing to fulfil its positive obligations in relation to misconduct of foreign state agents or NSAs operating on its territory; the obligation to secure the rights of individuals within its jurisdiction remains the same, regardless of who or what factually committed the violations or crimes. See A Nollkaemper, ‘The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?’ (EJIL:Talk!, 24 December 2012) <http://www.ejiltalk.org/the-ecthr-finds-macedonia-responsible-in-connection-with-torture-by-the-cia-but-on-what-basis/>. Cf H Keller and R Walther, ‘Evasion of the International Law of State Responsibility? The ECtHR’s Jurisprudence on Positive and Preventive Obligations under Article 3’ (2020) 24(7) The International Journal of Human Rights 957, 961. 968 Milanovic (2022) 227-228. PROEF PS Joelle Trampert.job_08/28/2024_86A 172 under this head, since its agents actively facilitated the treatment and then failed to take any measures that might have been necessary in the circumstances of the case to prevent it from occurring (see Z and Others v. the United Kingdom [§ 73]; M.C. v. Bulgaria [§ 149]; and Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia [§ 124 and 125]).969 None of the cases referred to by the Court here mention ‘active facilitation’. The cited paragraphs of the first two cases relate to the positive obligation to ensure that individuals within their jurisdiction are not subjected to torture or other ill-treatment, especially if they belong to a vulnerable group, and the third case concerns the respondent State’s refusal to intervene to protect a religious minority group despite its knowledge of attacks planned by radical religious opponents in advance and its refusal to carry out a proper investigation ex post. It is hard to ascertain what the Court precisely meant here.970 In the above-cited paragraph of its judgement in El-Masri, the Court first speaks of Macedonia’s direct responsibility suggesting attribution of conduct), then of its active facilitation (suggesting complicity), and then of its failure to take measures to prevent (i.e., a failure to intervene).971 The Court’s formulation also gives the impression that the Macedonian agents’ active facilitation plus their failure to prevent warranted attribution of conduct and entailed direct State responsibility. This deviates from the customary rules of attribution in the law of State responsibility.972 However, the Court might not have meant to attribute the conduct of the CIA to Macedonia, in the sense that it used ‘acquiescence or connivance’ as a ground for attribution. Instead, perhaps the Court simply found Macedonia responsible for the violations of Article 3 ECHR as it has breached its own positive obligations. Alternatively, perhaps the Court interpreted the definitional elements in Article 1 CAT as independent prohibitions. To recall, Article 1 CAT stipulates that pain or suffering qualifies as torture when it is ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’, and the Court has repeatedly followed this.973 Thus, perhaps the Court held Macedonia responsible for its own breach of the negative obligation to refrain from acquiescing (or: complicity) in acts of torture by others.974 With respect to the substantive violations of Article 5 ECHR, the Court found that El-Masri’s ‘unacknowledged detention’ in the hotel room in Skopje constituted ‘a particularly grave violation of his right to liberty and security’ for which Macedonia was directly and fully responsible.975 This is 969 ECtHR El-Masri para. 211. [Emphasis mine] 970 See also Nollkaemper (2012). 971 See also Milanovic (2022) 230. 972 See J Crawford and A Keene, ‘The Structure of State Responsibility under the European Convention on Human Rights’ in A van Aaken and I Motoc (eds) The European Convention on Human Rights and General International Law (OUP 2018) 189. See also Egan (2019) 91, making this point for another, similar case. 973 Mavronicola (2021) 80-81. 974 The other cases also indicate that this is perhaps what the Court did, see ECtHR Al Nashiri v Poland paras 209, 452 and 485, Abu Zubaydah v Poland paras 203, 449 and 479, Al Nashiri v Romania paras 201 and 638, and Abu Zubaydah v Lithuania paras 223 and 607. Cf Mavronicola (2021) 82. 975 ECtHR El-Masri para. 237. See also para. 241. PROEF PS Joelle Trampert.job_08/28/2024_86B 173 entirely consistent with the customary rules of State responsibility. As for his subsequent detention, the Court first applied the prohibition of refoulement. Then, regarding his rendition to and detention in Afghanistan, the Court held as follows: In this connection the Court reiterates that Article 5 [ECHR] lays down an obligation on the State not only to refrain from active infringements of the rights in question, but also to take appropriate steps to provide protection against an unlawful interference with those rights to everyone within its jurisdiction (…). The Macedonian authorities not only failed to comply with their positive obligation to protect the applicant from being detained in contravention of Article 5 [ECHR], but they actively facilitated his subsequent detention in Afghanistan by handing him over to the CIA, despite the fact that they were aware or ought to have been aware of the risk of that transfer. The Court considers therefore that the responsibility of the respondent State is also engaged in respect of the applicant’s detention between 23 January and 28 May 2004 (see, mutatis mutandis, Rantsev v. Cyprus and Russia [§ 207]).976 Once again, the Court appears to have used active facilitation plus the failure to prevent as a basis for attribution of conduct, leading to Macedonia’s direct responsibility for El-Masri’s entire period of detention in Afghanistan, but without referring to State agent ‘acquiescence or connivance’ in any of the paragraphs above. The Court did not elaborate any further, and its reference to Rantsev does not clarify matters either; the cited paragraph refers to Russia’s Article 1-jurisdiction with respect to the complaint that Russia had failed to investigate allegations of trafficking.977 One explanation for the Court’s formulation – and its conclusion that Macedonia was ‘to be held responsible for violating the applicant’s rights under Article 5 [ECHR] during the entire period of his captivity’978 – is that it qualified El-Masri’s abduction and detention as an ‘enforced disappearance’979 in the sense of the notion in the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). 976 Id, para. 239. 977 See also Milanovic (2022) 231. Cf ECtHR Rantsev para. 307: ‘(…) The failure to investigate the recruitment aspect of alleged trafficking would allow an important part of the trafficking chain to act with impunity. In this regard, the Court highlights that the definition of trafficking adopted in both the Palermo Protocol and the Anti-Trafficking Convention expressly includes the recruitment of victims (…). The need for a full and effective investigation covering all aspects of trafficking allegations from recruitment to exploitation is indisputable. The Russian authorities therefore had an obligation to investigate the possibility that individual agents or networks operating in Russia were involved in trafficking Ms Rantseva to Cyprus.’ Cf also para. 321: ‘Taken in the context of the general living and working conditions of cabaret artistes in Cyprus, as well as in light of the particular circumstances of Ms Rantseva’s case, the Court considers that it is not open to the police to claim that they were acting in good faith and that they bore no responsibility for Ms Rantseva’s subsequent deprivation of liberty in M.P.’s apartment. It is clear that without the active cooperation of the Cypriot police in the present case, the deprivation of liberty could not have occurred. The Court therefore considers that the national authorities acquiesced in Ms Rantseva’s loss of liberty.’ [Emphasis mine] It would have made much more sense if the Court had cited either or both of these paragraphs, insofar as para. 307 mentions the ‘trafficking chain’ which started in Russia and ended in Cyprus. A comparison could be made with the rendition of El-Masri, which started in Macedonia and ended in Afghanistan. However, this paragraph also relates to Russia’s procedural obligations under Article 4 ECHR and not to any ‘active facilitation’. In this respect, the Court’s findings on Cyprus’s responsibility for the deprivation of liberty in paras 319-321 are more relevant here. 978 ECtHR El-Masri para. 241. 979 Id, para. 240. PROEF PS Joelle Trampert.job_08/28/2024_87A 174 Like the CAT, the ICPPED sets a minimum level of State involvement, namely ‘authorization, support or acquiescence’, for a deprivation of liberty to qualify as an enforced disappearance.980 If the Court did use the definitional element of ‘acquiescence’ in the CAT to qualify El-Masri’s ill-treatment as torture, then it is unclear why it did not also mention ‘acquiescence’ or another qualifying term from the ICPPED in relation to El-Masri’s detention. Still, the qualification that it was an enforced disappearance does potentially explain why the Court held Macedonia responsible for his detention in Afghanistan. The Court held that El-Masri’s detention ‘was characterised by an ongoing situation of uncertainty and unaccountability, which extended through the entire period of his captivity’, in other words, that it was a continuing violation.981 The Court may very well have found Macedonia responsible for the violation of El-Masri’s substantive rights under Article 5 ECHR for as long as it continued. But as the Court provided no further reasoning, we can only speculate. Simply put, Macedonia was found directly responsible for all the human rights violations that Mr El-Masri had suffered.982 Perhaps the best explanation for the Court’s findings, especially where it held Macedonia directly responsible for violations that it would not necessarily incur responsibility for following the general rules of State responsibility, or at least not to that degree, is that it wanted to take a firm position on a Contracting State’s collaboration in the extraordinary rendition programme and the unspeakable mistreatment that El-Masri endured as a result of that State’s ‘active facilitation’.983 The Court took a similar approach in Nasr et Ghali, holding Italy directly responsible for the mistreatment suffered in Italy984 and for the entire period of Mr Nasr’s detention following his transfer to the American authorities, i.e., his detention in Egypt.985 It did not expressly mention Italy’s acquiescence, connivance or complicity986 and seemingly attributed the conduct in question to Italy, citing El-Masri and Al Nashiri v Poland.987 But in the Polish cases, the Court had been more specific. In these two judgements the Court did not consider Poland’s responsibility in wording reminiscent of attribution, but explicitly framed it in terms of complicity.988 The Court’s findings on Poland’s, Romania’s, and Lithuania’s responsibility is essentially the same: the State ‘knew of the nature and purposes of the CIA’s activities on its territory at the material time and cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory’ and ‘given that knowledge and the emerging widespread public information (…), it ought to have known 980 See Article 2 ICPPED, also cited in ECtHR El-Masri para. 95. 981 ECtHR El-Masri para. 240. 982 It also held Macedonia responsible for procedural violations of Articles 3 and 5 ECHR, see paras 186-194 and 242-243. On the ‘right to truth’, see F Fabbrini, ‘The European Court of Human Rights, Extraordinary Renditions and the Right to the Truth: Ensuring Accountability for Gross Human Rights Violations Committed in the Fight Against Terrorism’ (2014) 14 Human Rights Law Review 85 and Egan (2019) 43 and further. 983 See also Keller and Walther (2020) 962-963. 984 ECtHR Nasr et Ghali para. 289, citing El Masri para. 211. 985 Id, para. 302, citing El Masri para. 239. As already noted, Mr Nasr was not transferred by Italy to the American authorities; he was kidnapped by the CIA in Milan, with the help of Italian State agents. 986 Id, para. 241, referring to l’approbation formelle ou tacite in general terms and to El-Masri para. 206. 987 Id, para. 289, referring to El-Masri para. 211 and Al Nashiri v Poland para. 517. 988 ECtHR Al Nashiri v Poland, heading above para. 444, Abu Zubaydah v Poland, heading above para. 446. PROEF PS Joelle Trampert.job_08/28/2024_87B 175 that, by enabling the CIA to detain such persons on its territory, it exposed them to a serious risk of treatment contrary to the Convention’, despite it being unlikely that State officials had witnessed or knew exactly what happened inside the secret detention facility.989 In 2014, the ECtHR concluded that: [U]nder Article 1 of the Convention, taken together with Article 3, Poland was required to take measures designed to ensure that individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals (…). Notwithstanding the above Convention obligation, Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring. As the Court has already held above, on the basis of their own knowledge of the CIA activities deriving from Poland’s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist suspects in US custody the authorities – even if they did not witness or participate in the specific acts of ill-treatment and abuse endured by the applicant – must have been aware of the serious risk of treatment contrary to Article 3 occurring on Polish territory. Accordingly, the Polish State, on account of its “acquiescence and connivance” in the [High Value Detainee] Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory (see (…) El-Masri, cited above, §§ 206 and 211).990 In 2018, the Court repeated this conclusion almost verbatim regarding Romania and Lithuania’s responsibility for the substantive violations of Article 3 ECHR,991 and in 2024, it held the same regarding Lithuania.992 Thus, taking States’ positive obligations as a starting point, the Court appears to have based these States’ responsibility on their ‘acquiescence and connivance’ (in El-Masri, this was ‘acquiescence or connivance’) in the extraordinary rendition programme as a whole. Here, the notion of acquiescence and connivance clearly operates as a (regime-specific) complicity rule and not as a regime-specific attribution rule.993 With respect to Poland’s, Romania’s, and Lithuania’s responsibility for the substantive violations of Article 5 ECHR, the 2014, 2018, and 2024 Chambers did not follow El-Masri and hold these States responsible for the subsequent detention(s). Instead, their responsibility stopped from the moment that the respective victims left their territory.994 However, as Mr Al Nashiri and Mr Al-Hawsawi face the real risk of being subjected to the death penalty following their trials before a military commission, the Court did order Poland, Romania, and Lithuania to seek assurances 989 See ECtHR Al Nashiri v Poland para. 517 and Abu Zubaydah v Poland para. 512. See also ECtHR Al Nashiri v Romania para. 676, Abu Zubaydah v Lithuania para. 641, and Al-Hawsawi para. 215. 990 ECtHR Al Nashiri v Poland para. 517 and Abu Zubaydah v Poland para. 512. 991 ECtHR Al Nashiri v Romania paras 676-677 and Abu Zubaydah v Lithuania paras 641-642. 992 ECtHR Al-Hawsawi para. 216. 993 See again Milanovic (2022) 237. 994 ECtHR Al Nashiri v Poland para 531, Abu Zubaydah v Poland para. 525, Al Nashiri v Romania para. 691, Abu Zubaydah v Lithuania para. 657, and Al-Hawsawi para. 229. See also Keller and Walther (2020) 964. Cf Egan (2019) 98, noting that the Court ‘did not specify that Poland was being found responsible for the entire duration of the applicants’ subsequent detention afterwards in Guantánamo Bay.’ PROEF PS Joelle Trampert.job_08/28/2024_88A 176 from the US that the death penalty will not be imposed.995 Thus, while these States are not responsible for the continued violation of Al Nashiri’s and Al-Hawsawi’s rights, their obligation ‘to endeavour to remove that risk as soon as possible’ did not cease to exist. In sum, the extraordinary rendition cases clearly show that if Contracting States are complicit in or otherwise contribute to serious human rights violations taking place within their territory, they will incur responsibility under the Convention accordingly. The Court found the States which were complicit in the rendition programme responsible on the basis of their acquiescence or connivance, and on the basis of their active facilitation. Although the Court did not apply the general complicity rule, it cited it under the heading of applicable international law, and unequivocally framed these States’ responsibility in terms of complicity. The Court also found certain States responsible for violations beyond their territory, namely, by holding Macedonia responsible for El-Masri’s subsequent detention in Afghanistan.996 It did so without reference to ‘acquiescence or connivance’, and perhaps on the basis of Macedonia’s active facilitation, which it may have used as a sui generis attribution rule. However, the Court abandoned this approach in the cases against the States which had hosted the CIA black sites, and in these judgements the notions of ‘active facilitation’ and ‘complicity’ were front and centre. Active facilitation and complicity designate something more than acquiescence alone. Poland’s ‘facilitation of the whole process’, i.e., the process of executing the extraordinary rendition programme on Polish soil, was not just a form of acquiescence; it was closer to connivance, and closest to complicity in the sense of the rule reflected Article 16 ASR. As Milanovic has also pointed out: [C]onnivance implies active assistance to a third party committing a wrongful act that goes beyond the mere acquiescence in such an act, that is, some kind of theory of complicity. Recall that this is exactly how the Court used it in the four post- El-Masri rendition cases, in which it also employs the language of facilitation.997 The ordinary meaning of ‘acquiescence’ and ‘connivance’ is indeed quite different: acquiescence means passive assent to or reluctant acceptance of something,998 whereas connivance is a more active form of facilitation or a deliberate failure to prevent or suppress a wrong.999 Connivance as a concept does not exist as an independent legal notion in international law, but it is textually much closer to complicity. Thus, while acquiescence and/or connivance are often mentioned by the Court in cases regarding complicity or other contributions, they do not always designate the notion of complicity. 995 ECtHR Al Nashiri v Poland para. 589, Al Nashiri v Romania, para. 739, and Al-Hawsawi para. 276. 996 ECtHR El-Masri para. 239. 997 Milanovic (2022) 236. See also Milanovic (2020) 364-365. 998 See <https://www.oed.com/dictionary/acquiescence_n?tab=meaning_and_use#24113443>. 999 The OED defines ‘connive’ as the act ‘[t]o shut one’s eyes to a thing that one dislikes but cannot help, to pretend ignorance, to take no notice’ or ‘[t]o shut one’s eyes to an action that one ought to oppose, but which one covertly sympathizes with; to wink at, be secretly privy or accessory’. See <https://www.oed.com/dictionary/connive_v?tab=meaning_and_use#8561584> PROEF PS Joelle Trampert.job_08/28/2024_88B 177 5.2.2.4. Complicity in other cases Focusing exclusively on the term and concept of ‘complicity’, I identified just one judgement in the HUDOC database where a State has been found responsible for complicity in abuses by other actors in the absence of the ‘acquiescence or connivance’ formula. This is the case of S.P. and Others v Russia, which concerned the ill-treatment of ‘outcast’ prisoners by other inmates over a number of years.1000 The applicants were detainees serving prison sentences in various detention facilities in Russia. For different reasons, all had been ostracised and were treated as part of the lowest caste of the prisoner hierarchy, which meant that they were subjected to severe mental, physical, and sexual abuse by other prisoners. The applicants submitted that this system was an entrenched feature of Russian detention facilities, and that the Russian prison authorities tacitly endorsed it and were even complicit in it.1001 Under the heading of the State’s obligation to protect the applicants from ill-treatment, the Chamber referred to previous case law on inter-prisoner violence, especially the case of Premininy v Russia.1002 In that case, after noting that the positive obligations under Article 3 ECHR should not impose impossible or disproportionate burdens on the authorities, the Court set out when a State is in breach of its obligations under Article 3 ECHR: [T]o successfully argue a violation of his Article 3 right it would be sufficient for an applicant to demonstrate that the authorities had not taken all steps which could have been reasonably expected of them to prevent real and immediate risks to the applicant’s physical integrity, of which the authorities had or ought to have had knowledge. The test does not, however, require it to be shown that “but for” the failing or omission of the public authority the ill-treatment would not have occurred. (…). The Court also reiterates that State responsibility is engaged by a failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm to the applicant (…). The Court therefore has to establish whether, in the circumstances of the present case, the authorities knew or ought to have known that the first applicant was suffering or at risk of being subjected to ill-treatment at the hands of his cellmates, and if so, whether the administration of the detention facility, within the limits of their official powers, took reasonable steps to eliminate those risks and to protect the first applicant from that abuse.1003 Applying this to the facts in S.P. and Others, the Court noted that the system of prisoner hierarchy and the ill-treatment of those at the bottom was a widespread and well-known problem in Russia. The applicants had also submitted reports and (academic) research on this phenomenon to the Court.1004 The 1000 S.P. and Others v Russia, App Nos 36463/11 and 10 others (ECtHR, 2 May 2023). 1001 Id, paras. 20 and 22. 1002 Premininy v Russia, App No. 44973/04 (ECtHR, 10 February 2011. 1003 Id, para. 84. 1004 ECtHR S.P. and Others para. 44 and further. PROEF PS Joelle Trampert.job_08/28/2024_89A 178 Court then held that the Russian prison authorities ought to have been aware of this informal hierarchy as well as the applicants’ place within it, and that ‘[a]s the authorities had, or ought to have knowledge, of the risk which the applicants in this vulnerable category faced (…), it falls to the Government to explain what measures have been taken to address the applicants’ vulnerability.’1005 The Court found that the authorities had taken no steps whatsoever to protect the applicants from the abuse meted out by other prisoners.1006 No surveillance or security measures had been taken, there was no system in place to assess the risks for vulnerable prisoners, and there had been no proper policy to punish prisoners who committed the abuse.1007 This failure was a systemic one.1008 The Court concluded that ‘[i]n view of the extent of the problem, the Russian authorities’ failure to take action can be seen, in the present case, as a form of complicity in the abuses inflicted upon the prisoners under their protection.1009 The Court’s decision to qualify Russia’s responsibility as a form of complicity instead of a failure to intervene – as it did in Paul and Audrey Edwards, a case concerning inter-prisoner violence mentioned in the Introductory Chapter – or even acquiescence or connivance is striking. Drawing on the Court’s Guide on prisoners’ rights, which includes a section on inter-prisoner violence, this appears to be the only case where the respondent State was held responsible for complicity in the abuses committed by other inmates.1010 The S.P. judgement includes a reference to Begheluri, but not to the paragraph referring to ‘acquiescence or connivance’.1011 Of course, one cannot read too much into this one, single case. Nonetheless, it is a clear articulation by the Court of a State’s responsibility under the Convention for complicity in human rights violations in a situation where the State exercises a large degree of control over the victim.1012 Where cases such as Women’s Initiatives leave readers uncertain whether or not the Court meant to (also) hold the State responsible for complicity in (all) the violations as such, in the case of S.P., the Chamber has been clear. For some reason, the Court did not reference any of the discriminatory hate crime cases. Notwithstanding the obvious differences, these cases also concern individuals who belong to a vulnerable group which the State wittingly and willingly failed to protect from abuses by private actors. It also did not reference the extraordinary rendition case law. These cases are different in that they involved abuses by other State officials instead of NSAs, but they also concern the mistreatment of detainees within the State’s jurisdiction, in which the respondent State was complicit. Furthermore, it is worth noting that the finding of complicity in S.P. was made following an analysis of the State’s 1005 Id, para. 99. 1006 Id, para. 107. 1007 Id, paras 100-102. See also para. 105. 1008 Id, para. 103. 1009 Id, para. 108. [Emphasis mine] 1010 Council of Europe/European Court of Human Rights, Guide on Prisoners’ rights, updated 31 August 2023, 48-50. 1011 ECtHR S.P. and Others para. 90, with reference to Begheluri and Others para. 100 (on the severity threshold for Article 3 ECHR). 1012 See also Stoyanova (2018) 329. PROEF PS Joelle Trampert.job_08/28/2024_89B 179 positive obligation to protect. Thus, complicity could be seen here as an ‘aggravated’ form of responsibility for a breach of an obligation to protect, rather than an ‘indirect’ form of commission or responsibility for a breach of a negative obligation. In any case, S.P. is yet another example of the fact that complicity can result from omissions (although some aspects of the prison authorities’ conduct could arguably be qualified as active conduct too). It can be concluded that the Court is developing its own notion of complicity, comparable but not identical to the general complicity rule reflected in Article 16 ASR. Articles 2, 3, and 5 ECHR encompass a broad range of negative and positive obligations, the latter including substantive and procedural duties. One risk-based non-assistance rule (the prohibition of refoulement) is already a foundational rule in international law, and one basis for responsibility in cases where State conduct goes beyond a mere failure to intervene or investigate (acquiescence and/or connivance) is already accepted by the Court. A next step would be for the Court to find that there is a complicity rule ‘inherent in the general terms’ of Articles 2, 3, and 5 ECHR, similar to how it read the prohibition of refoulement into the general terms of Article 3 ECHR.1013 5.2.3. Conditions for complicity The previous paragraph already mentioned certain aspects of complicit States’ knowledge or the relevant causal link. The following paragraph sets out the conditions for complicity under the ECHR. 5.2.3.1. The material and nexus element Central to this study are violations of the right to life, the prohibition of torture or other ill-treatment, or the right to liberty and security. States can assist these principal violations through active conduct, passive conduct, or a combination of both. As has been repeated throughout, what counts as an act or an omission is often a question of framing. The obvious exception is refoulement: States cannot decide to remove or implement that decision by not acting. Based on the case law, it appears that the Court does not by definition rule out certain types of conduct from the scope of complicity; again, the cases studied show that States incur responsibility when they actively facilitate, but also when they, more passively, acquiesce in the principal actor’s conduct. In this sense, the ECtHR’s approach to responsibility is more fine-tuned than the ICJ’s approach in the Bosnian Genocide case, as the ECtHR has a broader understanding of conduct that warrants a finding of responsibility for complicity or other, lesser contributions. The Court has also held States responsible for encouraging NSAs in their commission of human rights abuses, e.g., in Women’s Initiatives, where the police officers removed the cordons between the participants and the violent counter-protestors and encouraged the latter to attack 1013 ECtHR Soering para. 88. See on this ‘interpretive solution’ Jackson (2015) 198, also referring to Soering. PROEF PS Joelle Trampert.job_08/28/2024_90A 180 the former. Especially in State-NSA constellations, there will be a fine line between encouragement and facilitation, and conduct can evolve from a (mere) failure to intervene into encouragement and active facilitation. Thus, the factual conduct of the State is of utmost importance, but the resulting breach and the corresponding form of responsibility will depend on other factors as well as the States’ obligations at that moment in time. In the rendition cases against Poland, Romania, and Lithuania, the Court observed that these States had ‘created the conditions for [the ‘whole process’, i.e., the rendition programme] to happen and made no attempt to prevent it from occurring’ and that the assistance provided was ‘the necessary condition for the effective operation of the CIA secret detention facilities.’1014 While this sounds like a nexus between the assistance and the principal violations that meets the but-for standard, the Court has explicitly rejected the need to meet such a high threshold in relation to positive obligations to protect.1015 Given that complicity as well as State acquiescence or connivance has also been examined under the heading of positive obligations, the same standards might apply. But this does not help us much, as, to quote Stoyanova in her article on positive obligations and causation, the Court has used different standards and ‘has not developed anything close to a consistent terminology.’1016 Stoyanova has demonstrated that when a State has extensive control over the victim, the positive obligations become more demanding. This makes sense, and is especially so in the context of detainees.1017 Stoyanova has also argued that instead of making an assessment in terms of causation, a better approach (and a way around the difficulty of establishing causation by omission) might be to determine whether the conduct in question was contrary to the applicable domestic legal framework, as in such cases, the Court more readily accepts that an omission led to the harm.1018 This would also work for situations of complicity, but again, would be very case-specific. As no clear standard exists under the ECHR, one might assume that the nexus requirement for the general complicity rule, which is that the act of assistance ‘significantly contributed’ to the principal violation, also applies here. Given that that standard applies for a violation of any international obligation, it is unlikely that the ECHR would require something more, also considering that it rejects the but-for test. 5.2.3.2. The knowledge element 1014 See ECtHR Al Nashiri v Poland paras 517 and 530, Abu Zubaydah v Poland paras 512 and 524, Al Nashiri v Romania paras 677 and 690, Abu Zubaydah v Lithuania paras 642 and 656, and see Milanovic (2022) 233-234 (fn 55) and 238-239. See also ECtHR Rantsev para. 321, where the Court noted that ‘without the active cooperation of the Cypriot police in the present case, the deprivation of liberty could not have occurred’. 1015 E. and Others v the United Kingdom, App No. 33218/96 (ECtHR, 26 November 2002) paras 99 and 100 and ECtHR Premininy para. 84. See also Stoyanova (2018) 316-317. 1016 Stoyanova (2018) 318. 1017 Id, 329 (referring to acts of ‘private violence’) and 331-332. 1018 Id, 332-334. PROEF PS Joelle Trampert.job_08/28/2024_90B 181 The Court’s approach to knowledge is fairly clear and consistent. In the rendition cases, it assessed whether the States in question knew or ought to have known of the risk of the principal violations at that moment in time.1019 In El-Masri, the Court held that ‘by transferring the applicant into the custody of the US authorities, the Macedonian authorities knowingly exposed him to a real risk of ill-treatment and to conditions of detention contrary to Article 3 [ECHR]’1020 and that they ‘actively facilitated his subsequent detention in Afghanistan by handing him over to the CIA, despite the fact that they were aware or ought to have been aware of the risk of that transfer.’1021 This constructive knowledge standard is not unique to cases of complicity; in cases of refoulement or positive obligations to prevent or protect, a State’s responsibility is determined on the basis of what it knew or should have known.1022 For the prohibition of refoulement, information which comes to light after a transfer can confirm that the risk indeed existed.1023 I have not been able to verify if this is also the case with positive obligations, but there is no reason for this to be otherwise.1024 Knowledge is also not something static, but can develop and increase over time.1025 Furthermore, as many positive obligations are obligations of due diligence, States will often be required to actively acquire information to prevent (further) harm from occurring.1026 However, in the rendition cases, the discriminatory hate crimes cases (especially Women’s Initiatives), and the case of inter-prisoner violence (namely S.P. and Others), it was not about what the State would or could have known had it done its ‘due diligence’; instead, the authorities must have been on notice of the risks given the abundance of evidence at their disposal. In the rendition cases against Poland, for example, the Court confirmed that: It is inconceivable that the rendition aircraft could have crossed Polish airspace, landed in and departed from a Polish airport, or that the CIA occupied the premises in Stare Kiejkuty and transported detainees there, without the Polish State being informed of and involved in the preparation and execution of the HVD Programme on its territory. It is also inconceivable that activities of that character and scale, possibly vital for the country’s military and political interests, could have been undertaken on Polish territory without Poland’s knowledge and without the necessary authorisation being given at the appropriate level of the State authorities. (…) Notwithstanding the foregoing proviso as to the lack of direct knowledge of the treatment to which the applicant was subjected in Poland, (…) already between 1019 See ECtHR El-Masri paras 198, 214, 233, and 239; Al Nashiri v Poland paras 441-442, 509, 517-518, and 529; Abu Zubaydah v Poland paras 443-444, 502, 512-513, and 523. This is repeated again in the cases against Italy, Romania, and Lithuania. See also Women’s Initiatives para. 68 and S.P. and Others para. 99. 1020 ECtHR El-Masri para. 220. 1021 Id, para. 239. [Emphasis mine] 1022 See e.g. ECtHR Vilvarajah and Others para. 107 and Kurt para. 158 (referring to Osman para. 116). 1023 See again ECtHR Vilvarajah and Others para. 107 and El-Masri paras 214 and 218. 1024 See also V Stoyanova, ‘Fault, Knowledge and Risk within the Framework of Positive Obligations under the European Convention on Human Rights’ (2020) 33 Leiden Journal of International Law 601, 610-611, stating that the Court assesses the State’s knowledge ‘without the benefit of hindsight’, i.e., that the Court considers what the State ought to have known at that moment in time (so in the past). However, Stoyanova also mentions that a parallel can be drawn with the prohibition of refoulement (which she sees as a positive obligation) (fn 70). 1025 See also Stoyanova (2018) 315. 1026 See also Stoyanova (2020) 607-608. PROEF PS Joelle Trampert.job_08/28/2024_91A 182 January 2002 and August 2003 numerous public sources were consistently reporting ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in different places. (....) Consequently, there were good reasons to believe that a person in US custody under the HVD Programme could be exposed to a serious risk of treatment contrary to those principles.1027 With reference to El-Masri, the Court also stressed that as the States knew or ought to have known that the transfers were extraordinary renditions, the possibility of a breach of Article 3 ECHR (i.e., the principal violation) must have been ‘considered intrinsic in the transfer’.1028 While the Court accepts a lower standard of knowledge for responsibility for complicity than the ICJ did in the Bosnian Genocide case or the ILC articulated in its Commentary to Article 16 ASR, it was evident in the rendition cases that the States in question had actual knowledge of the rendition programme and their role within it. Similarly, in Women’s Initiatives and S.P., it is clear from the facts that the respective States had actual knowledge of the risks (ex ante) and the violations (ex post). Stoyanova has also pointed out with respect to substantive positive obligations that it is often not clear from the Court’s judgements whether the respondent State knew about the risk, or whether it did not, but should have.1029 It will always depend on the facts of the case – and the evidence of those facts – whether the Court finds that a respondent State should have known of risk X or violation Y. The object of knowledge in the cases studied is the principal violation, or the risk of it occurring. The question can also be raised whether the State needs to have knowledge of the specific individual, i.e., the (potential) victim (at risk of) suffering the harm. Whether this is so, is highly case-specific.1030 In situations where a State is prohibited from transferring an individual to another jurisdiction, that knowledge will be a given. Likewise, knowledge will be necessary when a State is required to take protective operational measures vis-à-vis an individual or a group.1031 In (remote) complicity scenarios where the victims are abroad, the individuals subjected to the principal violations will often be unknown, for example when a State funds a foreign coastguard or authorises an arms export. In others, the identity of the individual will be known, for example when a State shares information on a specific person upon the request of another State. In the rendition cases, the Court held that it was unlikely that 1027 ECtHR Al Nashiri v Poland para. 441 and Abu Zubaydah v Poland para. 443, referring to El-Masri para. 218. See also Al Nashiri v Romania para. 588 and Abu Zubaydah v Lithuania para. 575. 1028 ECtHR Al Nashiri v Poland paras 454 and 518, Abu Zubaydah v Poland paras 451 and 513, Nasr et Ghali paras 243 and 288, Al Nashiri v Romania paras 595 and 678, and Abu Zubaydah v Lithuania paras. 582 and 643, all referring to El-Masri paras. 218-221. Note that in the case of Mr Nasr, who was abducted by the CIA on Italian territory after being stopped by an Italian official, the Court found that it was not necessary to determine whether the Italian authorities knew or should have known that he had been kidnapped in Milan and transferred from Italy for the purpose being handed over to Egypt, with the ‘inherent probability’ that he would be subjected to treatment in violation of Articles 3 and 5 ECHR, as an Italian court had already established that the national authorities must have been aware of the rendition operation or were even complicit in it. See Nasr et Ghali para. 113 under (iv). 1029 Stoyanova (2020) 609. 1030 See also Stoyanova (2018) 314. 1031 Or, as Stoyanova puts it, this substantive obligation is ‘activated when the authorities are aware that a specific individual could be at risk’. See Stoyanova (2020) 610. PROEF PS Joelle Trampert.job_08/28/2024_91B 183 the authorities witnessed or knew exactly what happened inside the secret detention facilities within their territory.1032 Despite the detainees’ identities (likely) not being known, Poland, Romania, and Lithuania still owed them Convention rights. Similarly, in Women’s Initiatives and S.P., it was sufficient that the State knew that those affected were members of a vulnerable group, namely on the basis of their sexual or gender identity in the context of a society with extremely homophobic views or due to the fact that they were among the lowest caste of the prison hierarchy. In both cases, the conditions that made the group vulnerable and lead to their victimisation were not new, but deeply entrenched in society. Regarding acquiescence or connivance, Milanovic has rightly noted that these terms already sound like knowledge standards.1033 Given that a State must acquiesce or connive in something, the principal violation is automatically covered. The acquiescing/conniving State’s knowledge of the link between that acquiescence/connivance and the harm, will often be implied. In the rendition cases, the States in question were aware of the rendition or ‘HVD’ programme and intentionally cooperated with the US. Whether or not they also intended for the ‘high value detainees’ to be tortured is beside the point (and also not a requirement under the general complicity regime, as this would amount to shared intent): they acquiesced and connived in it, and knowingly created the conditions for the rendition programme to happen and continue, of which torture and enforced disappearances were an intrinsic part. In other words, the Court found that the States in question were indeed aware that they were facilitating the US. This actually meets the high standard of knowledge articulated by the ILC, namely that the State provided the assistance with the view or intention to facilitate the commission of the principal violation. 5.2.3.3. The ECtHR’s approach to evidence Connected to the State’s knowledge of risk X or violation Y are issues of evidence. While this is outside the scope of the research, it is worth adding that the Court has sometimes taken a progressive (or aggressive, depending on one’s perspective) approach to the burden of proof.1034 The standard of proof is ‘beyond reasonable doubt’, but the Court has stressed that this has a distinct and independent meaning for State responsibility under the Convention, and should not necessarily be equated with the standard 1032 ECtHR Al Nashiri v Poland para. 517, Abu Zubaydah v Poland para. 512, Al Nashiri v Romania para. 677 and Abu Zubaydah v Lithuania para 642. 1033 Milanovic (2022) 238. 1034 See on this with respect to the Court’s judgement in Carter and its admissibility decision in Ukraine and the Netherlands v Russia Milanovic, ‘European Court Finds Russia Assassinated Alexander Litvinenko’ (EJIL:Talk!, 23 September 2021) <https://www.ejiltalk.org/european-court-finds-russia-assassinated-alexander-litvinenko/> and Milanovic ‘The European Court’s Admissibility Decision in Ukraine and the Netherlands v Russia: The Good, the Bad and the Ugly – Part I’ (EJIL:Talk!, 26 January 2023) <https://www.ejiltalk.org/the-european-courts-admissibility-decision-in-ukraine-and-the-netherlands-v-russia-the-good-the-bad-and-the-ugly-part-i/>. PROEF PS Joelle Trampert.job_08/28/2024_92A 184 in criminal law.1035 For the Court, ‘proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.’1036 The ECtHR explained in El-Masri that where alleged violations of Articles 2 or 3 ECHR occurred in State custody or cases involving disappearances, it can deviate from the principle affirmanti incumbit probatio and shift the burden of proof to the respondent State, as in such cases, the events in question lie ‘within the exclusive knowledge of the authorities’.1037 The Court specified that in these situations: [S]trong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (…). In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (…).1038 The Court reiterated this in the other rendition cases,1039 in Women’s Initiatives, and S.P. and Others.1040 Despite not having conducted a comprehensive study of the Court’s approach to evidence and distribution of the burden of proof, it can be concluded that when States are complicit in or otherwise contribute to serious human rights violations, (wilful) ignorance of the facts will not be an adequate defence before the Court. The constructive knowledge standard already requires States to act diligently, which can entail a duty to enquire. In combination with a reversal of the burden of proof and the Court’s practice of drawing inferences from dissatisfactory and unconvincing explanations on the side of the respondent State, the knowledge element will not present a huge hurdle for applicants. 5.2.4. Responsibility for complicity and other contributions in an extraterritorial context Bearing in mind the different models for extraterritorial jurisdiction which have been accepted by the Court to date and the Court’s approach to complicity, the next question is how the Convention could apply when a Contracting State is complicit in, otherwise contributes to, and/or fails to investigate its own agents’ or other actors’ complicity in the commission of serious human rights violations in an extraterritorial context, i.e., where the victim is located abroad. To address this question, I have chosen three different scenarios which are characterised by varying degrees of geographical remoteness: the case of M.Z. v Belgium, concerning Belgium’s alleged complicity in the US’ ‘enhanced interrogations’ 1035 See Gäfgen v Germany [GC] App No. 22978/05 (ECtHR, 1 June 2010) para. 92 and El-Masri para. 151, specifying that ‘it has never been [the Court’s] purpose to borrow the approach of the national legal systems that use [the ‘beyond reasonable doubt’] standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention.’ 1036 Id. See also Hassan v the United Kingdom [GC] App No. 29750/09 (ECtHR, 16 September 2014) para. 48. 1037 ECtHR El-Masri paras 152-153. See also Hassan para. 49. 1038 ECtHR El-Masri para. 152. 1039 ECtHR Al Nashiri v Poland paras 393-400, Abu Zubaydah v Poland paras 393-400, Nasr et Ghali paras 219-220, Al Nashiri v Romania paras 490-498, and Abu Zubaydah v Lithuania paras 480-488. 1040 ECtHR Women’s Initiatives para. 69 and S.P. and Others para. 83. PROEF PS Joelle Trampert.job_08/28/2024_92B 185 in Guantánamo Bay (declared inadmissible by the CmAT after being rejected by the ECtHR); the case of S.S. and Others v Italy, concerning Italy’s reported involvement in Libya’s pull-back operations in the Mediterranean Sea (currently pending before the Court); and a hypothetical case concerning a State’s responsibility regarding the transfer of arms to another State. 5.2.4.1. M.Z. v Belgium In April 2016, almost a year before his communication to the CmAT, Mr Zemmouri submitted an application to the ECtHR, complaining that Belgium had breached its obligations under Article 3 and Article 13 ECHR (the right to an effective remedy). Two months later, his application was declared inadmissible in a single-judge decision.1041 If his complaint would be submitted now for the first time and the other admissibility criteria would be met, how could the ECtHR decide on the merits? In light of Carter, Belgium could be seen to have exercised jurisdiction over Mr Zemmouri on the basis that Belgian State agents, by visiting him in custody and interrogating him there directly, had power and control over his physical integrity.1042 Granted, Carter concerned the right to life in a situation of proximate targeting, where Russian State agents put the fatal poison in Mr Litvinenko’s tea themselves. But this matters more for attribution and responsibility, than for jurisdiction, obligation, and breach. Similar to Mr Litvinenko, however, Mr Zemmouri was the ‘target’ of a planned operation. The fact that Belgian State agents travelled to Guantánamo Bay in order to participate in his interrogations and share information with the US illustrates this. By interrogating him, being in the same physical space as him, and doing nothing to secure his transfer or release, Belgian State agents could have been found to exercise authority and control over Mr Zemmouri. As Convention rights can be ‘divided and tailored’, this would not have placed an unreasonable burden on the Belgian State.1043 Accepting jurisdiction in this situation would not mean that Belgium would have owed him each and every Convention right; Belgium’s human rights obligations could have been limited to, say, Articles 3, 5, 6, and 13 ECHR. It would then have been a small step to hold Belgium responsible for complicity in Zemmouri’s torture and other ill-treatment, as both the nexus and the knowledge requirement of the general complicity rule could have been fulfilled. To recall, these requirements are that Belgium’s conduct significantly contributed to the principal violation (arguably, yes), that Belgium had actual knowledge of the commission of the principal violation (definitely, yes), and that Belgium ‘intended to facilitate’ the commission of the principal violation, which does not mean that Belgium shared the principal actor’s intent to torture, but that it knew of the torture and still decided to proceed anyway (which it did). It goes without saying that the double obligation requirement would also have been met. Aside from the general complicity rule, which the Court has never applied directly, the Court’s 1041 CmAT M.Z. para. 2.17. 1042 ECtHR Carter paras. 158-161. 1043 ECtHR Al-Skeini para. 137 and Carter para. 126. PROEF PS Joelle Trampert.job_08/28/2024_93A 186 ‘acquiescence or connivance’ formula would have served as an appropriate basis for Belgium’s responsibility too; Belgium did not just fail to protect him and to secure his release, but acquiesced and connived in his mistreatment. Moreover, the Court could have found Belgium responsible for ‘actively facilitating’ and thus complicity in the violations inflicted upon Mr Zemmouri. Alternatively, Belgium could be seen to have exercised jurisdiction over Zemmouri in relation to the procedural limb of the prohibition of torture due to certain ‘special features’. For the right to life, the Court has accepted that the obligation to carry out an effective investigation under Article 2 ECHR has evolved into a separate and autonomous obligation capable of binding the State even when the death occurred outside the State’s jurisdiction. A combination of ‘special features’ may then trigger a jurisdictional link between the State and the applicant in question. The Court has expanded this approach to Articles 3 and 5 ECHR too. In Georgia v Russia II, Russia had jurisdiction as regards Article 2 ECHR’s procedural limb because (i) the relevant rules of IHL and domestic law contained the obligation to investigate the deaths, (ii) Russia had established effective control over the territories in question shortly after the crimes were committed, and (iii) Georgia was unable to carry out an adequate and effective investigation as the potential suspects were not under their control.1044 In Hanan, Germany had jurisdiction since (i) it had retained exclusive (PIL-)jurisdiction over its troops with respect to serious crimes which it was (ii) obliged to investigate under IHL and domestic law.1045 As noted above, the Court concluded in both cases that these features in their combination created a jurisdictional link. The common point between these features is that other legal rules informed the respective States’ obligations under the ECHR, but it cannot be concluded that other legal rules alone would be sufficient. In Mr Zemmouri’s case, an argument could be made that Belgium had jurisdiction in relation to the procedural limb of Article 3 ECHR because (i) the Torture Convention requires Belgium to establish criminal jurisdiction and investigate acts of torture,1046 including allegations of complicity in torture (these are the ‘other legal rules’), and (ii) Belgian agents visited and interrogated him while he was detained in Guantánamo Bay, over whom the Belgian State retained (PIL-)jurisdiction.1047 Other features might also be relevant, as the case of H.F. and Others v France has shown. In sum, Belgium could have been considered to exercise jurisdiction in relation to the procedural limb of Article 3 ECHR, and therefore would have been obliged to fulfil the procedural duty under Article 3 ECHR, which requires an effective and independent investigation into Belgian agents’ involvement in acts of torture. Thus, in the case of M.Z. v Belgium, there were, or are, arguably two alternative bases for Belgium’s Article 1 ECHR-jurisdiction that each give rise to different obligations under the Convention. If lack of jurisdiction was indeed the reason for the single judge to reject the complaint, then in a future, 1044 ECtHR Georgia v Russia (II) paras 329-332. 1045 ECtHR Hanan paras 136-144. 1046 See Articles 5, 6, and 7 CAT. 1047 This is similar to Milanovic’s conclusion regarding the extraterritorial application of ‘prophylactic’ and procedural positive obligations, see again Milanovic (2011) 215, 216, and 219. PROEF PS Joelle Trampert.job_08/28/2024_93B 187 similar case, the Court could, and should, consider on the merits whether a State has jurisdiction in an alleged case of extraterritorial complicity. 5.2.4.2. S.S. and Others v Italy In 2018, seventeen applicants – S.S. and others – submitted an application to the ECtHR, complaining that Italy had breached its obligations under Articles 2, 3, and 4 ECHR and Article 4 of Protocol No. 4 to the ECHR (the prohibition of collective expulsion)1048 due to its role in a search and rescue operation carried out by the Libyan coastguard.1049 In the night of 5-6 November 2017, the applicants were part of a group of approximately 150 people who left Libya in a rubber dinghy, which started sinking soon after departure. The Italian rescue centre received the dinghy’s distress signal first and requested the ships in the area – the Sea Watch 3 (belonging to the NGO Sea Watch) and the Ras Jadir (belonging to the Libyan coastguard and donated by Italy earlier that year) – to assist the dinghy. At the time, an Italian navy helicopter was also in the vicinity. The Ras Jadir arrived first at the scene, but instead of immediately assisting, it obstructed the efforts of the Sea Watch 3. The Libyan coastguard allegedly created waves, causing people to fall into the water and drift away; beat people who were in the water; threw objects at those trying to reach the Sea Watch 3; and tied up, mistreated, and threatened those who it had taken on board. One individual hanging on the side of the Ras Jadir was only taken on board after the Italian navy helicopter repeatedly requested it to do so. Sea Watch eventually rescued almost sixty people and took them to Italy. Those ‘rescued’ by the Libyan coastguard were taken back to Libya, where they were detained in deplorable conditions and abused. Two of the applicants were subsequently returned to Nigeria, their country of nationality. Italy’s involvement consisted of more than donating the Ras Jadir, answering the distress call, and overseeing the rescue operation. It should be seen in the broader context of Italy’s (and the EU’s) longstanding cooperation with Libya to control irregular migration and in light of the ECtHR’s judgement in Hirsi Jamaa and Others v Italy.1050 This case concerned a joint push-back operation, carried out pursuant to Italy’s agreement with Libya to ‘combat illegal immigration’ to Italy by intercepting people crossing the Mediterranean Sea and returning them to Libya in order to prevent them from reaching Italy.1051 In Hirsi Jamaa, the Grand Chamber held unanimously that the people intercepted on the high seas by the Italian authorities and transferred to the Libyan authorities were within Italy’s jurisdiction because they were on board Italian military ships and the crews consisted of 1048 Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto (adopted 16 September 1963, entered into force 2 May 1968) ETS No. 046 (Protocol No. 4). 1049 See the ‘Statement of Facts’ in the communication of S.S. et Autres and Moreno-Lax (2020) 388-391. 1050 See again Moreno-Lax (2020) 390. See also Pijnenburg (2018) 396 (also noting the involvement of the EU). 1051 ECtHR Hirsi Jamaa paras 13-14. PROEF PS Joelle Trampert.job_08/28/2024_94A 188 Italian military personnel.1052 Having ‘learned its lesson’,1053 Italy changed its policy, and following a new MOU concluded in 2017, provided technical and technological support to the Libyan authorities ‘charged with fighting illegal immigration’ and financed the implementation of the initiatives.1054 Part of this financing comes from EU funds.1055 The MOU also stipulates that Italy would finance the Libyan reception (read: detention) centres and train personnel.1056 Taking the case of S.S. and Others as a ‘paradigmatic example’,1057 Moreno-Lax has demonstrated how a State’s effective control over a specific situation – instead of over an area or a person – can create a jurisdictional link between a specific State and a specific individual.1058 Jurisdiction is ‘functional’ in that it is based on the public powers or functions normally exercised by a sovereign State.1059 But instead of categorising the ‘public powers’ notion as one of the three variants of the personal model for extraterritorial jurisdiction,1060 Moreno-Lax has (re)conceptualised it as a comprehensive model based on States’ policies and actions: It is through policy measures and operational procedures that states exert personal or spatial control— carried out as claiming legitimacy and expecting compliance by those concerned. In these situations, the jurisdictional nexus between the state and the individual exists prior to any potentially ensuing violations—through the planning and execution of policy and/or operational conduct over which the state exerts effective (if not exclusive) control. Policy implementation and operational action are no accidental events. They manifest a degree of state deliberation and volition that, when actuated, constitute a fundamental expression of its powers as sovereign.1061 Moreno-Lax’s functional model consists of three elements which are already present in the Court’s jurisprudence: ‘impact’, ‘decisive influence’, and ‘operative involvement’.1062 The first element is essentially the same as the test for the functional model developed by Shany and adopted by the HRC, which hinges on the direct and reasonably foreseeable impact of a State’s conduct on an individual’s rights.1063 For Moreno-Lax, impact alone would not be sufficient, but it is an indication that the State is exercising IHRL-jurisdiction. Without going into all three indicators in detail, the claim of the applicants in S.S. is ultimately that Italy did here what it had done prior to the Hirsi Jamaa judgement 1052 Id, para. 81. 1053 Id, paras 158 and 186. 1054 See the ‘Statement of Facts’ in the communication of S.S. et Autres para. 15, citing Article 1(a) and (c) and Article 4 of the MOU. 1055 See Article 4 of the MOU, accessible via <https://www.statewatch.org/media/documents/news/2017/feb/it-libya-memo-immigration-border-security-2-2-17.pdf>. See also Moreno-Lax (2020) 391. 1056 See Article 2 of the MOU, id. 1057 Moreno-Lax (2020) 404. 1058 Id, 403-404. 1059 Id, 402-403. 1060 Id, 411, stating that Italy’s conduct does fulfil the criteria for the ‘public powers’ model as established in ECtHR Al-Skeini. See also Pijnenburg (2018) 411-413. 1061 Moreno-Lax (2020) 403. 1062 Id, 405. 1063 Id. PROEF PS Joelle Trampert.job_08/28/2024_94B 189 by proxy.1064 During the events that night in November 2017, Italy did not have effective control over the area where the victims were located, and Italian State agents did not have direct, physical control over the victims. This was of course precisely what Italy intended: Libya would make sure, enabled by Italy’s support, that people crossing the Mediterranean Sea would not come within Italy’s jurisdiction to begin with. Yet, for all intents and purposes, the ‘search and rescue’ operation of which Libya was in charge and physically carried out, was an implementation of Italy’s policy, over which Italy retained operational, albeit ‘contactless’, control. If Italy is found to have jurisdiction and the (other) admissibility criteria are met, how might the Court decide on the merits? The applicants have complained that the Italian rescue centre, by allowing the Ras Jadir to take part in the rescue operations, exposed them to the risk of ill-treatment and ‘danger of death’. According to them, the Italian authorities had failed in their positive obligations deriving from Articles 2 and 3 ECHR to protect their lives and physical integrity vis-à-vis the conduct of the Ras Jadir’s crew. They also claim that Italy ‘could not have been unaware’ that the Libyan refoulement practices are contrary to the standards of the Convention.1065 Instead of examining Italy’s responsibility for its failure to fulfil its positive obligations, the Court might first consider Italy’s direct responsibility for breaching its negative obligations. Depending on the specific obligation at issue, this may require attribution of the Libyan coastguard’s conduct.1066 Moreno-Lax and Lemberg-Pedersen have argued that ‘Italy’s involvement in [Libya’s] search and rescue (or rather, interdiction) operations, (…) rather than just an instance of complicity, engaging indirect responsibility, can thus be characterised as a breach entailing direct responsibility’.1067 If Italy is not found directly responsible for the human rights violations committed by Libyan agents at sea or in Libya, Italy’s responsibility for complicity would be an avenue to consider.1068 Moreno-Lax has argued that Italy’s conduct was ‘essential’ for the Libyan coastguard to operate, and that the Libyan coastguard was ‘entirely “dependent” on Italy’s (and the EU’s) assistance’.1069 Furthermore, ‘rather than contributing to diminishing the “horrific abuses” faced by migrants, in accordance with [Italy’s] due diligence obligations (…), the Italian plan deliberately led to their containment in Libya.’1070 This would fulfil the nexus element for the general complicity rule. As for the knowledge requirement, the Court’s rendition cases illustrate that constructive knowledge is sufficient for responsibility for complicity under the Convention. The applicants have also argued that Italy must have known of the Libyan coastguard’s modus operandi. Given Italy’s high level of involvement with Libya over a longer period of time, knowledge will not be an unsurmountable hurdle. 1064 Id, 387, 412-413. 1065 For the original wording and the entire complaint, see under ‘Griefs’ in the communication of S.S. et Autres. 1066 Moreno-Lax and Lemberg-Pedersen (2019) 28-29. 1067 Id, 29-30. [Emphasis in original] 1068 See also Concurring Opinion of Judge Pinto de Albuquerque, at 77 of ECtHR Hirsi Jamaa. Cf Moreno-Lax and Lemberg-Pedersen (2019) 29, but see Moreno-Lax (2020) 414-415 and Pijnenburg (2018) 415-421. 1069 Moreno Lax (2020) 409. 1070 Id, 410. PROEF PS Joelle Trampert.job_08/28/2024_95A 190 Pijnenburg has raised the point that holding Italy responsible for complicity in the violations committed by the Libyan coastguard would, strictly speaking, require the Court to adjudicate on Libya’s conduct and declare that it is internationally wrongful.1071 But as she has also noted, if a prohibition of assistance or complicity is read into the substantive Convention obligations, Contracting States can incur responsibility for breaching that self-standing obligation too.1072 This is how the Court proceeded in the extraordinary rendition cases: it did not rule on the US’ responsibility, but took the principal violations as a given and focused entirely on the conduct of the facilitating States, which amounted to breaches of the prohibition of refoulement and the authorities’ acquiescence, connivance, and complicity. If Italy is not found directly responsible, complicity is arguably a better basis for its responsibility than responsibility for a breach of the obligation to protect alone. This is because Italy did not just fail to protect the victims from foreseeable harm; it actively facilitated and intentionally collaborated with the principal State. Finally, if Italy is not found to have exercised jurisdiction to the extent that it owed any of the substantive obligations in the Convention, the ‘special features’ approach could still apply. The Court could use any or all of the facts in S.S. to construct a jurisdictional link between the victims and Italy for the purpose of the procedural obligations under Articles 2 and 3 ECHR. Even if Italy owed the victims no substantive obligations, it would still be required to carry out an effective investigation into the events. 5.2.4.3. A hypothetical arms trade case The international arms trade is one of the prime examples of lawful State conduct which can contribute to the commission of international crimes and serious human rights violations abroad. It is also a situation where foreign policy and corporate profits may take precedence over the right to life and physical integrity of unknown individuals in distant countries, and is one of the most pressing issues in terms of lack of accountability for serious and irreparable harm, not lastly – as regards the responsibility of States – because it is not easily captured by IHRL. To date, only one arms trade case has been considered in the context of the ECHR, namely the European Commission of Human Rights’ 1995 decision in Tugar v Italy.1073 The applicant, an Iraqi mine clearer who had suffered severe injuries from a mine sold to Iraq by an Italian company, invoked Article 2 ECHR and claimed that Italy had knowingly allowed the supply of an indiscriminate weapon or a weapon that would likely be used in an indiscriminate manner. Alternatively, he claimed that Italy had failed to protect him, by means of an effective arms transfer licensing system, from the harm resulting from Italian companies’ supply of 1071 Pijnenburg (2018) 420. This has to do with the ‘Monetary Gold principle’, see also ILC Commentary to Article 16 ASR, para. 11. 1072 See also EWHC Al-Saadoon and Others para. 196. 1073 Tugar v Italy, App No. 22869/93 (decision) (ECmHR, 18 October 1995). PROEF PS Joelle Trampert.job_08/28/2024_95B 191 weapons that are inherently indiscriminate. The applicant claimed that it was known or ought to have been known that the supply was taking place, and that Italy had failed to fulfil its positive obligations under Article 2 ECHR, for which it should incur responsibility. Drawing a parallel with the prohibition of refoulement established in Soering, the applicant submitted that Italy had exposed him to a risk of indiscriminate use of anti-personnel mines by Iraq. No submissions appear to have been made (or they were not included in the decision) on the Convention’s (extraterritorial) applicability. The Commission dismissed the complaint as inadmissible, but not for the reason that one would expect. According to the Commission, the circumstances of the case were entirely different to those in Soering, where the decision to expel or to extradite was ‘in itself clearly an act of “jurisdiction” on the part of the Contracting State concerned, for which it is responsible under the Convention.’ That ‘act of jurisdiction may directly expose a particular individual to a particular and immediate risk.’ Regarding the case of Mr Tugar, however, the Commission held that: [T]he applicant’s injury can not be seen as a direct consequence of the failure of the Italian authorities to legislate on arms transfers. There is no immediate relationship between the mere supply, even if not properly regulated, of weapons and the possible “indiscriminate” use thereof in a third country, the latter’s action constituting the direct and decisive cause of the accident which the applicant suffered. It follows that the “adverse consequences” of the failure of Italy to regulate arms transfers to Iraq are “too remote” to attract the Italian [State’s] responsibility.1074 By rejecting the case due to the applicant’s injury not being sufficiently connected to Italy’s conduct, the Commission avoided the question of Italy’s jurisdiction under Article 1 ECHR and, by extension, the scope of Article 2 ECHR in the context of (illicit) arms trade. In other words, the case was inadmissible due to a lack of causation, not a lack of jurisdiction per se. If a victim would submit a complaint following harm suffered as a result of (conventional) arms transferred by a Contracting State today, it would almost certainly be rejected for a lack of jurisdiction. However, the Court’s third ground for extraterritorial jurisdiction could perhaps still provide an avenue. It follows from Georgia v Russia II and Hanan that other legal rules can inform the content of the procedural limb of Article 2 ECHR and require a State to investigate a death that occurred outside that State’s jurisdiction. In addition, on the basis of H.F. and Others, a number of very specific factors can require a State to ensure that a decision-making process is surrounded by appropriate safeguards against arbitrariness even when the people who are impacted by the decision(s) are otherwise outside the State’s jurisdiction. This holding strictly concerned France’s obligations under Article 3(2) of Protocol No. 4 to the ECHR: the right to enter one’s country of nationality. By default, this right is exercised by people outside a country’s borders, and it is hard to conceive how it would ever operate in 1074 Id. PROEF PS Joelle Trampert.job_08/28/2024_96A 192 practice if people outside their country of nationality’s borders could not invoke it before the Court. Bearing this in mind, the idea that States may have limited jurisdiction for some procedural aspects of certain Convention obligations could possibly inform the content of certain obligations in the context of arms trade too. Drawing on these cases, could the obligation to conduct a risk assessment before authorising an export, implied in customary and conventional IHL and codified in Article 7 ATT, be read into the procedural limbs of Articles 2 and 3 ECHR in arms trade cases, requiring the State to ensure that an export decision is not arbitrary and is in conformity with other legal rules? In addition, could the State be obliged to investigate, and if appropriate, prosecute and punish the persons in charge of the company if and after the principal violation, i.e., a serious violation of IHRL, took place? This would present a rather odd situation: where one branch of government allowed an export, it seems absurd that another would investigate the company that used that same licence. Yet a licence to export does not impose an obligation to export. A licence would also not absolve those in charge from any criminal responsibility. In parallel, could the authorising State be obliged to investigate its own organs, i.e., the agents who authorised or otherwise allowed the export contrary to obligations under IHL and/or the ATT? If such an obligation, based on ‘special features’, would be read into Articles 2 and 3 ECHR, this could give rise to a jurisdictional link between the victims and the authorising State. The next question is what this means for responsibility under the Convention. Following the route of procedural obligations, an exporting State could incur responsibility for failing to conduct an effective investigation into an export. In some of the Court’s case law on discriminatory hate crimes, a State’s failure to properly investigate was found to amount to official acquiescence or even connivance in those crimes.1075 Without wanting to suggest that the failure to investigate discriminatory hate crimes committed by private individuals within the State’s territory is similar to the failure to investigate a company’s arms exports to a State where those arms are used to commit serious human rights violations, there may be a limited analogy: if a State allows arms exports to take place from its jurisdiction and subsequently fails to investigate when serious human rights violations are committed, would that amount to official acquiescence and connivance?1076 Or, drawing on the Court’s jurisprudence in the extraordinary rendition cases, the argument could be made that a State which allows or enables a company to export arms from its jurisdiction to another jurisdiction, thereby exposes the individuals in the other State to a foreseeable serious risk of harm, in breach of Articles 2 and 3 ECHR.1077 On the basis of the (case) law as it is, Contracting States will not incur responsibility for complicity under the Convention when they authorise or otherwise allow the export of arms to States where those arms are subsequently used to commit or facilitate serious violations of IHRL. But following the third ground 1075 ECtHR Women’s Initiatives paras 63-67. 1076 See for a similar idea in relation to the export of goods used for torture, Trampert (2023) 301-302. 1077 See ECtHR Al Nashiri v Poland para. 518, Abu Zubaydah v Poland para. 513, and Al-Hawsawi v Lithuania para. 217. PROEF PS Joelle Trampert.job_08/28/2024_96B 193 for extraterritorial jurisdiction currently accepted by the Court, States could be found responsible for failing to investigate their own sovereign actions ex post facto. The fact that States have control over their decision to allow an export and that other legal rules, which States have consented to be bound by, require States to scrutinise that decision both ex ante and ex post, could arguably be understood as special features for the purpose of a jurisdictional link between the victims and the State. Those rules could be read into the procedural limbs of Articles 2 and 3 ECHR. While there is no precedent for this, it would not expand the current interpretation of jurisdiction as accepted by the Court to date, it would not go beyond what has already been accepted by States, and it would also not place them under any undue burdens. This would mean, albeit to a limited extent, that the ECHR could govern arms transfers of and from Contracting States. To conclude Section 5.2, although the options to assign responsibility to States for complicity in and other contributions to the commission of serious human rights violations in cross-border constellations under the ECHR are still rather limited, it is not entirely impossible. The case of S.S. and Others will force the Court to engage with the thorny issue of extraterritorial jurisdiction, and perhaps – although this is unlikely – move more in the direction of the functional model as adopted by the HRC. 5.3. The International Covenant on Civil and Political Rights As with the ECHR, States will only incur responsibility under the Covenant if it applies. This Section starts with the HRC’s approach to extraterritorial jurisdiction in its recent output (5.3.1). Next, it identifies the rules and concepts that the HRC has used to establish States’ responsibility for complicity in and other contributions to serious human rights violations (5.3.2) and discusses the conditions of these rules (5.3.3). The final paragraph examines how responsibility for complicity or other contributions could be assigned in an extraterritorial context (5.3.4). 5.3.1. The ICCPR’s extraterritorial application The HRC has adopted a functional model for jurisdiction. Shany, one of the main legal minds behind this model, has also concluded in his scholarship that IHRL’s territorial focus is eroding.1078 The following paragraphs discuss the functional model as adopted by the HRC in General Comment No. 36 on the right to life (5.3.1.1), how it has been applied in two cases concerning State parties’ duties to protect the right to life of people in situations of distress at sea (5.3.1.2), and how it applies in relation to the obligation to regulate corporate conduct (5.3.1.3). 1078 Shany (2023) 467. PROEF PS Joelle Trampert.job_08/28/2024_97A 194 5.3.1.1. The functional model As with Article 1 ECHR, the jurisdictional clause in Article 2 ICCPR contains a concept of jurisdiction specific to IHRL and to the ICCPR in particular. Article 2(1) ICCPR imposes an overarching obligation that each State party ‘undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’.1079 This general obligation is limited by or dependent on a State party’s jurisdiction, which can either be territorial or extraterritorial. The HRC specified in General Comment No. 31 on Article 2 ICCPR that States owe the obligations in the Covenant to individuals within their ‘power or effective control of that State Party, even if not situated within the territory of the State Party’.1080 This includes control exercised by a State’s armed forces outside its territory, regardless of how that control was obtained.1081 In this, we recognise the spatial and personal models for extraterritorial jurisdiction as established by the ECtHR: a State may either lawfully or unlawfully have control over a geographical area – or over a person’s body – through, for example, the presence of its own forces.1082 In 2018, the HRC adopted General Comment No. 36 on the right to life, which also included an updated interpretation of the notion of jurisdiction. Long advocated for by academics but never before so explicitly endorsed by a human rights body, the HRC took the bold step to expressly adopt the functional approach to jurisdiction. This novel and progressive approach would not necessarily replace the spatial and personal models but complement them,1083 although the personal model in particular could be subsumed by the functional one.1084 With respect to the extraterritorial application of the right to life, the HRC established: In light of article 2 (1) of the Covenant, a State party has an obligation to respect and ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner (…).1085 1079 See also HRC General Comment No. 31 para. 6. 1080 The term ‘and’ in Article 2(1) ICCPR actually means ‘or’, see also HRC General Comment No. 31 para. 10. 1081 Id. 1082 Id and HRC General Comment No. 36 para. 63. 1083 See R Goodman, C Heyns and Y Shany, ‘Human Rights, Deprivation of Life and National Security: Q&A with Christof Heyns and Yuval Shany on General Comment 36’ (Just Security, 4 February 2019) <https://www.justsecurity.org/62467/human-life-national-security-qa-christof-heyns-yuval-shany-general-comment-36/>. 1084 As Milanovic has also explained, the spatial model eventually ‘collapses’ into the personal model as the area in question gets smaller and smaller, see Milanovic (2011) 134. In turn, the personal model can be subsumed by the functional model because control over a person’s body automatically means that the State exercises power or control over that person’s ability to enjoy their rights. 1085 HRC General Comment No. 36 para. 63. PROEF PS Joelle Trampert.job_08/28/2024_97B 195 As touched on in the previous Section, this model does not focus on the State’s control over the geographical area where an individual is located or State agents’ physical control over an individual’s body as such. Rather, it hinges on the State’s power or control over an individual’s ability to enjoy their right to life. Such control is present if and when a person’s right to life is affected or impacted by a State’s activities ‘in a direct and reasonably foreseeable manner.’ In support, the HRC referenced General Comment No. 31 on Article 2 ICCPR and two concluding observations, one on the UK’s use of detention facilities in Iraq and Afghanistan,1086 and another on the US’ use of drones for targeted killings abroad.1087 Regarding the UK, the HRC concluded that ‘the State party should state clearly that the Covenant applies to all individuals who are subject to its jurisdiction or control.’ It is not clear what the HRC meant by ‘jurisdiction or control’ and why it added the term ‘control’, but this is consistent with the spatial and personal models. Regarding the US, the HRC voiced its concerns with the US’ broad take on the notion of ‘armed conflict’ and the measures taken (or rather, lack thereof) to protect civilians. In this situation, it is not clear how the ICCPR would apply, besides on the basis of a much broader understanding of the personal model, or, indeed, the functional model. The HRC’s progressive interpretation of jurisdiction is laudable, but the origins of this model in the HRC’s output before General Comment No. 36 are rather tenuous. Still, the HRC’s idea is exemplary of a wider trend in IHRL, with other bodies and courts adopting more functional approaches to jurisdiction too. In particular, the IACtHR has used a functional model in an advisory opinion on human rights and the environment,1088 which the UN Committee on the Rights of the Child (CRC) cited and followed in an admissibility decision concerning the right to life and certain other rights in the context of climate change.1089 The CRC has also adopted a number of decisions on admissibility concerning France’s obligation to repatriate children from camps in Syrian Kurdistan, where it held that France, ‘as the State of the children’s nationality, ha[d] the capability and the power to protect the rights of the children in question by taking action to repatriate them or provide other consular responses.’1090 None of these are 1086 Concluding Observations on the United Kingdom of Great Britain and Northern Ireland, UN Doc CCPR/C/GBR/CO/6 (HRC, 30 July 2008) para. 14. 1087 Concluding Observations on the United States of America, UN Doc CCPR/C/USA/CO/4 (HRC, 23 April 2014) para. 9. See also R Goodman, C Heyns and Y Shany, ‘Human Rights, Deprivation of Life and National Security: Q&A with Christof Heyns and Yuval Shany on General Comment 36’ (Just Security, 4 February 2019) <https://www.justsecurity.org/62467/human-life-national-security-qa-christof-heyns-yuval-shany-general-comment-36/> answer to question 1, referring to the same concluding observations, para. 22. 1088 IACtHR The Environment and Human Rights paras 95 and further, especially 101-104. The IACtHR found that ‘the persons whose rights have been violated are under the jurisdiction of the State of origin, if there is a causal link between the act that originated in its territory and the infringement of the human rights of persons outside its territory.’ 1089 Sacchi and Others v Argentina, CRC/C/88/D/104/2019 (CRC, 22 September 2021) para. 10.7. The CRC focused on whether the ‘State of origin exercises effective control over the sources of the emissions in question’, instead of on whether that State has control over individuals’ ability to enjoy their rights as such. 1090 L.H. and Others v France, CRC/C/85/D/79/2019-CRC/C/85/D/109/2019 (CRC, 30 September 2020) para. 9.7. and F.B. and Others v France, CRC/C/86/D/R.77/2019 (CRC, 4 February 2021) para. 8.8. (I have used the initials of the authors of the communication, not of the victims). The CRC has repeated this in a similar case against Finland, see P.N., K.K. and O.M. v Finland, CRC/C/91/D/100/2019 (CRC, 12 September 2022) paras 10.9 and 11.3. PROEF PS Joelle Trampert.job_08/28/2024_98A 196 binding judgements and the CRC’s legal reasoning leaves much to be desired,1091 but functional jurisdiction is, overall, an increasingly dominant approach.1092 While the HRC has adopted it in the context of the right to life, it likely applies to other rights too, including – at least – the prohibition of torture.1093 Since adopting General Comment No. 36, the HRC has applied the functional model in a pair of parallel complaints concerning Italy’s and Malta’s jurisdiction with respect to people in distress at sea and outside these States’ territorial waters. 5.3.1.2. The functional model applied to situations of distress at sea In October 2013, the relatives of the authors of the complaints boarded a fishing vessel that left Libya for Europe. A few hours into the journey, it was shot at by another vessel, which caused it to sink. People on board made a number of distress calls to the Italian rescue centre. First, they were told that they would be rescued, but a few hours later, they were informed that they should contact the Maltese rescue centre instead, as their vessel was located in the Maltese search and rescue zone. Several more calls were then made to the Maltese armed forces as well as the Italian rescue centre. Malta formally accepted to coordinate the rescue efforts, but arrived at the scene after the vessel had capsized. Despite an Italian naval ship being in the vicinity, it arrived even later. Italy claimed that it had informed Malta of the vessel in distress as well as the vessels in the vicinity, but had not received any instructions from Malta to intervene. The vessel in distress sank and over half those on board died, including the relatives of the authors of the complaint. In its considerations on admissibility in both cases, the HRC quoted verbatim from its General Comment on the right to life, referring to the functional approach to jurisdiction as well as to State parties’ obligation to respect and protect the lives of individuals ‘who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea.’1094 The HRC then added: The Committee further recalls its jurisprudence that a State party may be responsible for extraterritorial violations of the Covenant in cases such as those involving extradition or deportation, if it is a link in the 1091 M Milanovic, ‘Repatriating the Children of Foreign Terrorist Fighters and the Extraterritorial Application of Human Rights’ (EJIL:Talk!, 10 November 2020) <https://www.ejiltalk.org/repatriating-the-children-of-foreign-terrorist-fighters-and-the-extraterritorial-application-of-human-rights/>, L Raible, ‘Extraterritoriality Between a Rock and Hard Place’ (2021) Questions of International Law, Zoom-in 82, 7, and M Emberland, ‘The Committee on the Rights of the Child’s Admissibility Decisions in the ‘Syrian Camps Cases’ against France: a Critique from the Viewpoint of Treaty Interpretation’ (2023) 23 Human Rights Law Review 1. 1092 H Duffy, ‘Global Threats and Fragmented Responses, Climate Change and the Extra-Territorial Scope of Human Rights Obligations’ in N Blokker, D Dam-de Jong, V Prislan (eds) Furthering the Frontiers of International Law: Sovereignty, Human Rights, Sustainable Development (Brill 2021) 81-82. 1093 See also A Pizzuti and CF Moran, ‘The Memorandum of Understanding between Italy and Libya: Does It Create Human Rights Obligations on the Part of Italy?’ (Opinio Juris, 5 August 2021) <http://opiniojuris.org/2021/08/05/the-memorandum-of-understanding-between-italy-and-libya-does-it-create-human-rights-obligations-on-the-part-of-italy/>. 1094 A.S. and Others v Italy, UN Doc CCPR/C/130/D/3042/2017 (HRC, 4 November 2020) para. 7.5, A.S. and Others v Malta, UN Doc CCPR/C/128/D/3043/2017 (HRC, 13 March 2020) para. 6.5. PROEF PS Joelle Trampert.job_08/28/2024_98B 197 causal chain that would make possible violations in another jurisdiction, where the risk of an extraterritorial violation is a necessary and foreseeable consequence judged on the knowledge the State party had at the time.1095 This paragraph is not cited in General Comment No. 36, but has been repeated in various majority decisions, Committee members’ separate opinions,1096 and by academics as evidence of some kind of functional or cause and effect jurisdiction in the HRC’s output.1097 It is almost a direct quote from the HRC’s decision in the case of Munaf v Romania.1098 In March 2005, Mr Munaf, a dual national of the US and Iraq, travelled to Iraq from Romania with three Romanian journalists, as their interpreter and guide. The group was kidnapped and held hostage for almost two months, allegedly by Iraqi NSAs. When they were released, they were brought to the Romanian embassy in Baghdad by officers of the Multinational Force-Iraq (MNF-I, the US-led coalition forces). Munaf, not realising that he was suspected of involvement in the kidnapping, requested to go the American embassy on account of his dual citizenship, which the Romanian authorities allowed. He was subsequently taken by MNF-I officers to a detention facility, where he was allegedly threatened with torture and subjected to other ill-treatment. Relying on Judge v Canada, a refoulement case discussed below, the applicant claimed that ‘by failing to act’, namely, by allowing the US authorities to take him into their custody, Romania ‘established the crucial link in the causal chain that would make his execution possible’.1099 For the HRC, the main question was whether Romania had ‘exercised jurisdiction over [Munaf] in a way that exposed him to a real risk of becoming a victim of violations of his rights (…), which it could reasonably have anticipated.’1100 It continued: The Committee recalls its jurisprudence that a State party may be responsible for extra-territorial violations of the Covenant, if it is a link in the causal chain that would make possible violations in another jurisdiction. Thus, the risk of an extra-territorial violation must be a necessary and foreseeable 1095 Id. 1096 See e.g. Concurring Opinion of Committee members de Frouville and Ben Achour to Yassin and Others v Canada, UN Doc CCPR/C/120/D/2285/2013 (HRC, 26 July 2017). 1097 See B Çali, C Costello and S Cunningham, ‘Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies’ (2020) 21 German Law Journal 355, 364, Moreno-Lax (2020) 405-406, and Milanovic (2021) 1355. Cf K Gombeer and S Smis, ‘The Establishment of ETOs in the Context of Externalised Migration Control’ in M Gibney, G Erdem Türkelli, M Krajewski, W Vandenhole (eds) The Routledge Handbook on Extraterritorial Human Rights Obligations (Routledge 2022) 177, noting that while Munaf ‘indeed employ[s] the language of ‘effects’, [it] in fact did not established anything along the lines of cause-and-effect doctrine for establishing human rights jurisdiction.’ See also Separate Opinion of Committee member Zimmermann, para. 4, to HRC A.S. and Others v Malta, stating that ‘the majority’s framing of this standard by referring to its own prior decision in Munaf v. Romania is misleading since in that case, the author was within the Embassy of Romania, where the State obviously had full legal jurisdiction over its diplomatic premises and the acts of all persons therein – a situation hardly comparable with the high seas.’ I agree. 1098 Munaf v Romania, UN Doc CCPR/C/96/D/1539/2006 (HRC, 30 July 2009) para. 14.2. 1099 Id, para. 3.1. 1100 Id, para. 14.2. PROEF PS Joelle Trampert.job_08/28/2024_99A 198 consequence and must be judged on the knowledge the State party had at the time: in this case at the time of the author’s departure from the Embassy.1101 This is the paragraph cited in the cases of A.S. and Others. In Munaf, the HRC cited three other decisions, namely A.R.J. v Australia, Judge v Canada, and Alzery v Sweden. In A.R.J. v Australia, this ‘necessary and foreseeable consequence’ formula was used as an equivalent for the ‘real risk’ test in refoulement cases.1102 In Judge, the HRC did hold that by deporting the complainant to a country where he had been sentenced to death, the State party ‘established the crucial link in the causal chain that would make possible the execution’, but did so exclusively in the context of refoulement, where jurisdiction was not at issue.1103 Finally, Alzery contains neither of these formulas, but does relate to a State party’s responsibility for breaching the prohibition of refoulement and for acquiescing in acts of torture committed by another State.1104 These findings have been reproduced and expanded in Munaf without further explanation, and in turn, the paragraph in Munaf has been cited in other cases as support for a broader approach to jurisdiction. But this case should not be overinterpreted or taken out of context. The HRC concluded in Munaf that Romania had not ‘exercised jurisdiction over the author in a way that exposed him to a real risk of becoming a victim of any violations under the Covenant.’1105 The best way to understand the case is in accordance with the dissenting opinion on the admissibility decision of Committee members Shearer, Rodley, and Iwasawa, who found no evidence of any jurisdictional link between Romania and the author, as he had left the embassy voluntarily. In their view, the communication had been ‘artificially constructed as a complaint against Romania, a party to the Optional Protocol, in order indirectly to draw attention to alleged violations of the Covenant by Iraq and the United States.’1106 Returning to the cases of A.S. and Others, the HRC held in its decision regarding Malta that because the vessel in distress was located in Malta’s search and rescue zone and Malta had accepted to coordinate the operation, Malta had ‘exercised effective control over the rescue operation, potentially resulting in a direct and reasonably foreseeable causal relationship between the States parties’ acts and omissions and the outcome of the operation.’1107 However, the complaint was declared inadmissible due 1101 Id. Note that the applicant phrased his claim like this, see again para. 3.1. 1102A.R.J. v Australia, UN Doc CCPR/C/60/D/692/1996 (HRC, 28 July 1997) paras 6.8, 6.10, 6.12, and 6.14. 1103 Judge v Canada, UN Doc CCPR/C/78/D/829/1998 (HRC, 5 August 2002) para. 10.6. 1104 HRC Alzery paras11.3-11.6. 1105 HRC Munaf para. 14.6. 1106 Dissenting Opinion of Committee members Shearer, Rodley and Iwasawa. See also Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (First Optional Protocol). 1107 HRC A.S. and Others v Malta para. 6.7. Cf Separate Opinion of Committee member Zimmermann. See also M Milanovic, ‘Drowning Migrants, the Human Rights Committee, and Extraterritorial Human Rights Obligations’ (EJIL:Talk!, 16 March 2021) <https://www.ejiltalk.org/drowning-migrants-the-human-rights-committee-and-extraterritorial-human-rights-obligations/>. PROEF PS Joelle Trampert.job_08/28/2024_99B 199 to the authors’ failure to exhaust available domestic remedies.1108 In the decision regarding Italy, the HRC found that Italian authorities had indeed reassured the people in distress that they would be rescued and even after Malta had taken over, the Italian naval ship had been ready to assist at the scene, where it eventually arrived, albeit too late.1109 This had created a ‘special relationship of dependency’ between Italy and the individuals on the vessel in distress, which comprised factual elements (the initial contact of the vessel in distress with the Italian rescue centre, the close proximity of the Italian naval ship to the vessel in distress, and Italy’s ongoing involvement in the rescue operation) and legal obligations under the international law of the sea.1110 The HRC then held that: [T]he individuals on the vessel in distress were directly affected by the decisions taken by the Italian authorities in a manner that was reasonably foreseeable in the light of the relevant legal obligations of Italy, and (…) they were thus subject to the State party’s jurisdiction for the purposes of the Covenant, notwithstanding the fact that they were within the Maltese search and rescue region and thus concurrently subject to the jurisdiction of Malta.1111 The HRC concluded that Italy had ‘failed to show that it has met its due diligence obligations under article 6 (1) of the Covenant’1112 and that it had failed to effectively investigate the incident.1113 This is surely a good outcome in terms of human rights protection: Italy’s conduct was far from exemplary, and the HRC’s decision sends a strong message to States which are involved in migrant deaths at sea.1114 Moreover, the decision offers a noteworthy contribution on situations of shared responsibility, as well as on the possibility of concurrent IHRL-jurisdiction. But the majority’s reasoning on Italy’s jurisdiction is debatable, as is also apparent from the fact that several Committee members dissented from the majority’s decision on Italy’s jurisdiction, including those who have always been prominent proponents of the functional model. According to Shany, Heyns, and Pazartzis, the majority did not properly 1108 Id, para. 6.9. Note the HRC’s holding that ‘although there is no obligation to exhaust domestic remedies if they have no prospect of being successful, authors of communications must exercise due diligence in the pursuit of available remedies (…).’ 1109 HRC A.S. and Others v Italy para. 7.7. 1110 Id, paras. 7.6 and 7.8. These legal obligations, i.e., the obligations to render assistance, to respond to distress messages, and to coordinate search and rescue activities, are laid down in Article 98(1) of the United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS); Chapter V, Regulation 10 of the International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 2; and Chapter 5.6 of the International Convention on Maritime Search and Rescue (adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS. 1111 Id, para. 7.8. Italy’s subsequent criminal investigation into the conduct of various naval officers was also taken as a factor that underscored the ‘potential legal responsibility – albeit under domestic law – of Italian officials vis-à-vis the victims of the incident.’ 1112 Id, para. 8.5. 1113 Id, para. 8.6. 1114 See also G Citroni, ‘No More Elusion of Responsibility for Rescue Operations at Sea: the Human Rights Committee’s Views on the Case A.S., D.I., O.I. and G.D. v. Italy and Malta’ (Opinio Juris, 9 March 2021) <http://opiniojuris.org/2021/03/09/no-more-elusion-of-responsibility-for-rescue-operations-at-sea-the-human-rights-committees-views-on-the-case-a-s-d-i-o-i-and-g-d-v-italy-and-malta/>. PROEF PS Joelle Trampert.job_08/28/2024_100A 200 differentiate between the (f)actual exercise of effective control over individuals outside State territory and a State’s potential to exercise such control.1115 As Milanovic has pointed out, however, the difference between the two is not self-evident when it comes to positive obligations, i.e., duties to act.1116 There is also the inevitable question of where to draw the line. For Shany, Heyns, and Pazartzis, Italy only had jurisdiction once the Italian navy ship arrived at the scene; the initial contact between the vessel in distress and the Italian rescue centre was insufficient for a jurisdictional link, as there was no additional evidence showing that Italy had accepted legal responsibility and thus jurisdiction.1117 In essence, the dissent found that the people in distress were not directly affected by Italy’s decisions and failures in a way that was reasonably foreseeable.1118 A final issue is that the HRC’s decision may create adverse incentives, as States might be inclined to refrain from answering a distress call or sending ships to the scene in order to avoid a ‘special relationship of dependency’.1119 What qualifies as a ‘direct and reasonably foreseeable’ impact, and when the State’s ability to protect someone’s right also creates an obligation, is highly case-specific. But despite the remaining uncertainties, the functional model is here to stay, and is arguably better than a narrow conception of jurisdiction based on the State’s control over a specific area or over a person’s body.1120 In cases of alleged breaches of negative obligations, functional jurisdiction will also be easier to establish, and lead to less arbitrary outcomes. Most importantly for this study, it means that the Covenant can have extraterritorial application, including in situations of extraterritorial complicity. 5.3.1.3. The functional model and the obligation to regulate corporate conduct Besides referring to the functional model under the heading of the relationship of Article 6 ICCPR with other Covenant obligations and other legal regimes, General Comment No. 36 also mentions it under the heading of the duty to protect life in relation to the obligation to regulate corporate conduct.1121 The obligation to take appropriate measures to protect individuals against deprivation of life by other actors, including ‘corporations operating within their territory or in other areas subject to their jurisdiction’ 1115 Joint Opinion of Committee members Shany, Heyns, and Pazartzis, para. 2. 1116 See M Milanovic, ‘Drowning Migrants, the Human Rights Committee, and Extraterritorial Human Rights Obligations’ (EJIL:Talk!, 16 March 2021) <https://www.ejiltalk.org/drowning-migrants-the-human-rights-committee-and-extraterritorial-human-rights-obligations/>. 1117 Joint Opinion of Committee members Shany, Heyns, and Pazartzis, para. 4. 1118 Id, para. 5. 1119 See Separate Opinion of Committee member Zimmermann, para. 4, to HRC A.S. and Others v Italy, and see again M Milanovic, ‘Drowning Migrants, the Human Rights Committee, and Extraterritorial Human Rights Obligations’ (EJIL:Talk!, 16 March 2021) <https://www.ejiltalk.org/drowning-migrants-the-human-rights-committee-and-extraterritorial-human-rights-obligations/>. 1120 Cf ECtHR Ukraine and The Netherlands v Russia para. 570. 1121 HRC General Comment No. 36 para. 22. PROEF PS Joelle Trampert.job_08/28/2024_100B 201 already exists, and is uncontroversial.1122 For example, the Netherlands is obliged to protect people on Dutch soil from corporations producing poisonous emissions. General Comment No. 36 then adds that: [States] must also take appropriate legislative and other measures to ensure that all activities taking place in whole or in part within their territory and in other places subject to their jurisdiction, but having a direct and reasonably foreseeable impact on the right to life of individuals outside their territory, including activities undertaken by corporate entities based in their territory or subject to their jurisdiction, are consistent with article 6 [ICCPR].1123 This is a further expansion of States’ positive obligations under the Covenant. The paragraph from General Comment No. 36 cited above in 5.3.1.1, which establishes that a State’s jurisdiction extends over ‘persons located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner’ references the paragraph cited here.1124 The wording is familiar: a State has Article 2(1)-jurisdiction, and hence ICCPR-obligations, when the right to life of an individual abroad is impacted in a direct and reasonably foreseeable manner. But where the former (paragraph 63, cited above in 5.3.1.1) speaks of military or other activities impacting the rights of individuals abroad, thereby alluding to State activities, the latter (paragraph 22, cited here) speaks of all activities, including those of corporations based in the State’s territory. This appears to expand States’ jurisdiction even further, at least for the right to life. It also seems to introduce another dimension to the substantive obligation to protect the right to life, namely, to regulate what corporations can and cannot do along their value chains. In a piece on the functional model of jurisdiction adopted by the HRC and the CRC, Ollino has argued that this approach, or rather, the current test, makes jurisdiction ‘fundamentally meaningless’1125 because it ‘conflates the concept of State’s “power and authority toward an individual” with the concept of power over the source of risk’.1126 In other words, it uses the same criteria for establishing the content of an obligation as for determining whether the obligation applies in the first place. This is largely true, but the functional model is still, in principle, a more appropriate way to conceptualise jurisdiction. Having said that, it is one thing to agree that States have human rights obligations when their own conduct affects an individual’s right to life in a direct and reasonably foreseeable manner, for example when they take part in military action abroad or a rescue operation at sea, but it is quite another to say that positive obligations also arise when the activities of an actor whose conduct is not attributable to 1122 Id. See also C Methven O’Brien, ‘The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Rebuttal’ (2018) 3(1) Business and Human Rights 47, 64. 1123 HRC General Comment No. 36 para. 22. 1124 Id, para. 63, text accompanying fn 253. 1125 A Ollino, ‘The ‘Capacity-Impact’ Model of Jurisdiction and its Implications for States’ Positive Human Rights Obligations’ (2022) Questions of International Law, Zoom-in 82, 82 and again at 99. 1126 Id, 98. PROEF PS Joelle Trampert.job_08/28/2024_101A 202 the State impacts the right to life of an individual abroad.1127 This would significantly and almost limitlessly extend the scope of the ICCPR, unless the ‘directness’ criterion is interpreted strictly. With respect to the obligation to regulate corporate activity itself, it is undisputed that States have an obligation to protect individuals from (risks of) human rights violations committed by NSAs within their jurisdiction, including from corporations producing poisonous emissions. This is because the State has jurisdiction over those individuals, and power over the source of (risk of) harm. But power over the source alone seems too tenuous a link to establish that first, the State has jurisdiction over all the individuals that are impacted, and that second, the State therefore has a positive obligation to take ‘appropriate legislative and other measures’ in order to protect them. As seen in Chapter 4, the obligation to ensure respect for IHL as laid down in CA1 can be understood to include a duty for States to regulate corporations within their jurisdiction and control exports from their jurisdiction to countries where there is an armed conflict, so as to ensure that ‘domestic’ corporate conduct does not contribute to serious violations of IHL abroad. Similarly, Article 7 ATT requires States to refrain from authorising an export if there is an ‘overriding risk’ that the goods in question could be used to commit or facilitate serious violations of IHL or IHRL in the receiving State. But whether or not a similar obligation, which has extraterritorial effect, exists under IHRL remains debatable.1128 The General Comment on the right to life refers to one decision and three concluding observations.1129 In the latter, the HRC encouraged Germany and Korea respectively to set out the expectation that all corporations domiciled in their territory or otherwise subject to their jurisdiction respect the rights codified in the ICCPR throughout their operations, and to take measures to strengthen the remedies available for individuals harmed by such corporations operating abroad.1130 Similarly, the HRC expressed that Canada should improve its oversight mechanisms as well as the legal remedies available to victims.1131 The decision, the case of Yassin and Others v Canada, concerned Canada’s responsibility with respect to the activities of two Canadian companies operating in occupied Palestinian territory. The companies were involved in construction work that took place in unlawful Israeli settlements in the authors’ village. The authors claimed that by failing to ensure that the companies’ activities did not violate the ICCPR and by failing to hold them accountable for doing so, Canada had breached its extraterritorial obligations under the Covenant, including, among others, 1127 Cf Shany (2013) 62, questioning why a State shouldn’t be obliged to protect foreigners from harms caused by private actors operating from within its own borders. 1128 It does not under the ECHR, although this is due to jurisdiction. See the case of Ben El Mahi v Denmark, App No. 5853/06 (decision) (ECtHR, 11 December 2006). The application was declared inadmissible due to lack of Article 1-jurisdiction. It should however be noted that this is a decision from 2006 relating to Article 9 in conjunction with Article 14 ECHR and to Articles 10 and 17 ECHR. See also Methven O’Brien (2018) 65 and further. 1129 It refers to HRC Yassin and Others para. 6.5, Concluding Observations on Canada, UN Doc CCPR/C/CAN/CO/6 (HRC, 13 August 2015) para. 6, Concluding Observations on Germany, UN Doc CCPR/C/DEU/CO/6 (HRC, 12 November 2012) para. 16, and Concluding Observations on the Republic of Korea, UN Doc CCPR/C/KOR/CO/4 (HRC, 3 December 2015) para. 10. 1130 Concluding Observations on Germany para. 16 and Concluding Observation on Korea para. 11. 1131 Concluding Observations on Canada para. 6. PROEF PS Joelle Trampert.job_08/28/2024_101B 203 Articles 2 and 7 ICCPR.1132 The HRC found the communication inadmissible on the basis that the authors had not provided ‘sufficient information about the extent to which Canada could be considered responsible as a result of a failure to exercise reasonable due diligence over the relevant extraterritorial activities of the two corporations’ and that therefore ‘the nexus between the State party’s obligations under the Covenant, the actions of [the companies] and the alleged violation of the authors’ rights [was] not sufficiently substantiated.’1133 But in the paragraph cited in General Comment No. 36, the HRC, after noting that the companies were indeed within Canada’s jurisdiction, also held that: While the human rights obligations of a State on its own territory cannot be equated in all respects with its obligations outside its territory, (…) there are situations where a State party has an obligation to ensure that rights under the Covenant are not impaired by extraterritorial activities conducted by enterprises under its jurisdiction. That is particularly the case where violations of human rights that are as serious in nature as the ones raised in this communication are at stake.1134 The majority cited the aforementioned concluding observations on Germany and Canada, the oft-cited paragraph in Munaf, and another HRC decision, namely Hicks v Australia.1135 In this case, the author had been detained in Guantánamo Bay from 2002-2007, and following a plea agreement, had been convicted of ‘providing material support for terrorism’ and sentenced to seven years of imprisonment by a US Military Commission. Mid 2007, he was transferred to Australia, where he served seven months of his sentence. He complained of a number of violations under the Covenant, and invoked Australia’s responsibility for his time in Guantánamo Bay as well as his subsequent imprisonment in Australia. The quote from Yassin and Others cited above includes a reference to three paragraphs in Hicks where the HRC held that Australia ‘had some influence over the way the [US] treated the author and was in a position to take positive measures to ensure that the author was treated in a manner consonant with the Covenant’, but also that Australia’s influence did not amount to ‘the exercise of power or effective control over the author, who was detained in a territory controlled by the [US] that was not under the sovereignty or jurisdiction of the State party.’1136 It is thus unclear how any of this would support the HRC’s assertion in Yassin and Others regarding States parties’ obligations under the Covenant to regulate corporate conduct abroad. While applying the Covenant to State conduct abroad might be an acceptable and even necessary expansion, the conclusion that this would include a ‘home State’ obligation to regulate cooperate conduct and to provide effective remedies is not well substantiated and does not fully satisfy the question if this duty 1132 HRC Yassin and Others para. 6.2. 1133 Id, para. 6.7. 1134 Id, para. 6.5. 1135 See again HRC Munaf v Romania para. 14.2, the Concluding Observations on Canada and Germany (same paras as cited above), and Hicks v Australia, UN Doc CCPR/C/115/D/2005/2010 (HRC, 5 November 2015) paras 4.4-4.6. It also cited HRC General Comment No. 31 para. 8. 1136 HRC Hicks paras 4.4-4.5. PROEF PS Joelle Trampert.job_08/28/2024_102A 204 exists in the first place. Even the UNGPs do not imply that there would be such an obligation, with the Commentary to Principle 2 stating that ‘States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction.’1137 Granted, the UNGPs were adopted in 2011, and they rightly add that States are not prohibited from regulating corporate conduct impacting individuals abroad either. But as it stands now, there are no further sources of positive law which support the conclusion that IHRL in general or the ICCPR in particular includes an obligation to regulate corporate conduct vis-à-vis individuals whose rights are impacted by the activities of that corporation, even where the human rights violations are ‘serious in nature’. This could of course change. Interestingly, the cases concerning State responsibility in connection with corporate conduct that impacts the rights of people abroad decided by the HRC (Yassin and Others) and an ECHR-body (Tugar) were not deemed inadmissible due to the fact there was no (jurisdictional) link between the individuals affected and the State party, but because the nexus between the harm and the State party had not been adequately substantiated. How would the HRC have decided in Yassin and Others if the authors had provided ‘sufficient information about the extent to which Canada could be considered responsible as a result of a failure to exercise reasonable due diligence over the relevant extraterritorial activities of the (…) corporations’? Committee members de Frouville and Ben Achour raised this point in their separate opinion, noting that the HRC ‘seems to have implicitly recognized that victims of such acts could fall under the “jurisdiction” of the State party, in the sense of [Article 2(1) ICCPR] but does not explain why.’1138 If jurisdiction was not the main issue, this would support the HRC’s expansion of State parties’ jurisdiction to situations where conduct that is not attributable to them but takes place within their jurisdiction and affects the right to life of individuals abroad would bring those individuals within their Article 2(1)-jurisdiction. 5.3.2. Refoulement, acquiescence, and complicity This paragraph identifies certain rules or concepts under Article 6, Article 7 (the prohibition of torture), and Article 9 ICCPR (the right to liberty and security) that can be used to assign responsibility for complicity in or other contributions to serious human rights violations. The rights and corresponding obligations enshrined in the Covenant can be conceptualised in the same way as those in the ECHR: Articles 6, 7, and 9 impose positive as well as negative obligations,1139 and the positive obligations have 1137 Commentary to Principle 2 of the UNGPs, at 7. See also Methven O’Brien (2018) 48. 1138 Concurring Opinion of Committee members de Frouville and Ben Achour, para. 3. 1139 See HRC General Comment No. 31 para. 8; for Article 6 ICCPR, see HRC General Comment No. 36 para. 18 and further; for Article 7 ICCPR, see Ahani v Canada, UN Doc CCPR/C/80/D/1051/2002 (HRC, 29 March 2004) para. 10.7 (albeit in relation to the prohibition of refoulement too); and for Article 9 ICCPR, see General Comment No. 35 on Article 9 (liberty and security of person) UN Doc CCPRC/GC/35 (HRC, 16 December 2014) para. 7. PROEF PS Joelle Trampert.job_08/28/2024_102B 205 a substantive as well as a procedural limb.1140 The negative obligation of non-refoulement applies in relation to Articles 6 and 7 ICCPR, and arguably applies for severe violations of Article 9 ICCPR too.1141 In addition to responsibility for failing to prevent violations by other actors, States can incur responsibility for acquiescing in these violations. Unlike for the ECHR, there is not necessarily an ICCPR-specific complicity rule, but General Comment No. 36 has specified that Article 6 ICCPR also obliges States not to assist violations of the right to life by others.1142 This Section examines HRC output on the prohibition of refoulement (5.3.2.1) and the notion of acquiescence (5.3.2.2), and the HRC’s reference to the general complicity rule (5.3.2.3). 5.3.2.1. The prohibition refoulement A couple of years after the ECtHR’s judgement in Soering, the HRC considered a similar matter in the case of Kindler v Canada: would Canada’s decision to extradite the applicant to the US, where he faced the risk of the death penalty, be contrary to Canada’s obligations under Articles 6 or 7 ICCPR?1143 On admissibility, the HRC held that: If a person is lawfully expelled or extradited, the State party concerned will not generally have responsibility under the Covenant for any violations of that person’s rights that may later occur in the other jurisdiction. (…) However, if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant. That follows from the fact that a State party’s duty under article 2 of the Covenant would be negated by the handing over of a person to another State (…) where treatment contrary to the Covenant is certain or is the very purpose of the handing over. For example, a State party would itself be in violation of the Covenant if it handed over a person to another State in circumstances in which it was foreseeable that torture would take place. The foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later on.1144 On the merits, the HRC found that Canada’s decision to extradite the applicant without seeking any assurances from the US against the death penalty was not in breach of the prohibition of refoulement in Article 6 ICCPR, as the requirements for its lawful imposition under Article 6(2) ICCPR were expected to be met in the US.1145 This also meant that the death penalty would not be contrary to Article 7 ICCPR 1140 For Article 9 ICCPR, see HRC General Comment No. 35 para. 9. 1141 For Article 9 ICCPR, see id, para. 57. 1142 HRC General Comment No. 36 para. 63. 1143 Kindler v Canada, UN Doc CCPR/C/48/D/470/1991 (HRC, 30 July 1993) paras 12.3 and 13.2. 1144 Id, para. 6.2. [Emphasis mine] 1145 Id, paras 14.1-14.6 and 16. PROEF PS Joelle Trampert.job_08/28/2024_103A 206 per se.1146 Canada was therefore not responsible for any ‘present’ violations of the Covenant. While the language used by the HRC raises some questions (e.g., what if a person is not ‘lawfully’ removed, and what if the treatment contrary to the ICCPR is not ‘certain’ or the ‘very purpose of the handing over’?), the HRC’s recognition of the prohibition of refoulement for Articles 6 and 7 ICCPR did at least mark an expansion of the substantive rights within the scope of the Covenant; a person within a State party’s jurisdiction now had the right not to be exposed to the risk of their rights being violated, including where that violation would occur abroad at a later moment in time. Some ten years later, the HRC had the opportunity to reconsider its conclusion on the merits in Kindler in the case of Judge v Canada.1147 After recalling that ‘the Covenant should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of present-day conditions’,1148 the HRC found that: For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove (…) individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out.1149 By deporting the applicant to the US without any assurances that the death penalty would not be imposed, Canada had violated Article 6(1) ICCPR. The HRC explicitly – and superfluously – added that while it recognised that Canada had not imposed the death penalty itself, Canada had ‘established the crucial link in the causal chain that would make possible the execution’ of the applicant.1150 As seen above, the HRC has reiterated the latter part of this statement in subsequent output, including in relation to Article 2(1)-jurisdiction. The most relevant refoulement case in the context of this study is the case of Alzery v Sweden.1151 The facts will be familiar, as they are virtually identical to those in the case of Agiza v Sweden before the CmAT (discussed in Section 3.2): after entering Sweden on a false Danish passport, Mr Alzery, an Egyptian national, applied for asylum in Sweden in August 1999. His application was rejected in December 2001 on the basis of his alleged links to an organisation implicated in terrorist activities, despite Sweden’s finding that the applicant’s fears of persecution in Egypt were well founded. Sweden had requested and received assurances that Egypt would respect the applicant’s rights upon his return, and thus ordered the applicant’s expulsion. At the Bromma airport police station, Swedish police handed 1146 Id, paras 15.1-15.3 and 16. See also para. 6.7. 1147 HRC Judge paras 10.1-10.2. 1148 Id, para. 10.3. 1149 Id, para. 10.4. [Emphasis in original] 1150 Id, para. 10.6. 1151 Mr Alzery also submitted an incomplete complaint to the ECHR in 2002. The complaint was eventually declared inadmissible in 2004. See Alzery v Sweden, App No. 10786/04 (decision) (ECtHR, 26 October 2004). PROEF PS Joelle Trampert.job_08/28/2024_103B 207 Mr Alzery over to about ten American and Egyptian security agents, all wearing hoods and civilian clothing. These agents subjected the applicant to a violent and invasive strip-search. He was photographed, handcuffed, chained by his feet, tranquilised per rectum and, dressed in a diaper and overalls, escorted to a plane blindfolded, hooded, and barefooted. In Egypt, the applicant suffered torture and ill-treatment, despite Egypt’s assurances and Sweden’s follow-up visits. The applicant complained that his expulsion had breached the prohibition of refoulement, as Sweden was or should have been aware that he faced the real risk of torture or ill-treatment in Egypt. Second, he complained that his treatment at Bromma airport and the subsequent lack of an effective investigation were in breach with Sweden’s positive substantive and procedural obligations under Article 7 ICCPR.1152 As for the first part of the complaint, the HRC noted that Sweden had conceded that there was a real risk of ill-treatment upon return and had sought and relied on Egypt’s assurances for precisely that reason.1153 The HRC condemned this, finding that the follow-up visits were inadequate for monitoring compliance.1154 While assurances can mitigate the risk, they can simultaneously prove knowledge of the risk on the part of the refouling State. The HRC found that Sweden was responsible for breaching the prohibition of refoulement in Article 7 ICCPR, which is fully in line with other refoulement cases and the case of Agiza decided by the CmAT a year earlier. Its approach to the second part of the complaint, on the positive substantive obligation, was more novel. 5.3.2.2. Acquiescence and attribution Similar to the ECtHR, the HRC has found that a State’s failure to fulfil positive obligations to protect and its acquiescence in the commission of certain human rights violations entails the responsibility of that State.1155 Regarding his treatment at Bromma airport, My Alzery argued that this was ‘imputable to Sweden by the latter’s failure to prevent it though within its power, and further violated his rights under article 7 [ICCPR]’, adding that the Swedish authorities ‘allowed the treatment to take place, without seeking to prevent or stop it.’1156 On this, the HRC held that: 1152 HRC Alzery para. 4.2. 1153 Id, para. 11.4. 1154 Id, para. 11.5. 1155 Rather, the ECtHR’s approach resembles that of the HRC. The HRC’s decision in Alzery casts an additional light on a particular (and peculiar) element of the ECtHR’s judgement in El-Masri, namely where the ECtHR appeared to attribute the conduct of the CIA to Macedonia. The ECtHR cited HRC Alzery and CmAT Agiza under the heading of the ‘relevant case-law of foreign jurisdictions and international bodies’ and recalled that ‘The relevant United Nations committees found Sweden responsible under Article 7 of the ICCPR, concluding that the treatment to which Mr Alzery had been subjected at Bromma Airport had been imputable to the State Party and had amounted to a violation of Article 7 of the Covenant (…)’. [Emphasis mine] See ECtHR El-Masri para. 109. The conduct of the Macedonian officials present at the scene in El-Masri was surely no less blameworthy than that of the Swedish police in Alzery. Therefore, perhaps the ECtHR considered that it could not lag behind, and simply decided to follow the HRC without explaining that it was doing so and instead of following (or, rather, explicitly deviating from) the general attribution rules in customary international law. See also Nollkaemper (2012) and Keller and Walther (2020) 963. 1156 HRC Alzery para. 4.13. PROEF PS Joelle Trampert.job_08/28/2024_104A 208 [T]he Committee must first assess whether the treatment suffered by the author at the hands of foreign agents is properly imputable to the State party under the terms of the Covenant and under applicable rules of State responsibility. The Committee notes that, at a minimum, a State party is responsible for acts of foreign officials exercising acts of sovereign authority on its territory, if such acts are performed with the consent or acquiescence of the State party (see also article 1 of the Convention against Torture). It follows that the acts complained of, which occurred in the course of performance of official functions in the presence of the State party’s officials and within the State party’s jurisdiction, are properly imputable to the State party itself, in addition to the State on whose behalf the officials were engaged.1157 The HRC thus agreed with Mr Alzery and attributed the conduct of the foreign State agents to Sweden on the basis of Swedish officials’ presence at the scene. It is relevant here that Alzery submitted that his treatment at the airport amounted to torture ‘rather than any lesser form of ill-treatment’.1158 While the HRC did not explicitly pronounce on this, it did refer to Article 1 CAT (the definition of torture). Contrary to what the HRC stated, it is not at all clear how Alzery’s mistreatment is attributable to Sweden ‘under applicable rules of State responsibility’; indeed, as Egan has also noted, this finding is ‘clearly at variance with the consensus view of the rules of State responsibility’.1159 There was no evidence that Swedish officials had instructed, directed or controlled the conduct in question ex ante, or had acknowledged and adopted it ex post.1160 It was also not apparent that the HRC used any other ground for attribution of conduct.1161 While the general grounds for attribution can thus not explain why the acts complained of were ‘properly imputable’ to Sweden,1162 the reference to Article 1 CAT might. Perhaps the HRC used the definitional element of acquiescence in Article 1 CAT as a specific ground for attribution, or perhaps it interpreted it as an independent negative obligation. The notion of acquiescence may have been used in a similar manner in the case of Serna and Others v Colombia.1163 The communication, lodged some five years after the HRC decided in Alzery, concerned the disappearance of the authors’ relatives and alleged violations of Articles 6, 7, and 9 ICCPR as well as Article 16 ICCPR (the right to recognition as a person before the law). The disappearances had occurred in an area under the control of paramilitary forces, the formation of which, according to the evidence submitted by the authors and of UN human rights bodies,1164 had been encouraged by Colombia.1165 The HRC further found that: 1157 Id, para. 11.6. [Emphasis mine] 1158 Id, para. 10.5. 1159 See again Egan (2019) 91. 1160 Cf Articles 8 ASR and 11 ASR. 1161 E.g. Article 6 ASR. 1162 See also Milanovic (2021) 1346. 1163 Serna and Others v Colombia, UN Doc CCPR/C/114/D/2134/2012 (HRC, 9 July 2015). 1164 HRC Serna and Others paras 2.20 and 9.3. 1165 Id, para. 9.3. PROEF PS Joelle Trampert.job_08/28/2024_104B 209 [Colombia had accorded these groups] legal recognition – to assist law enforcement bodies in fighting insurgents and provided them subsequently with training, weapons, logistical support and, in some instances, active involvement by the military in their operations. The Committee also notes that enforced disappearance was a widespread practice used by paramilitary groups beginning in 1988, with the complicity of the Colombian armed forces (…). The authors point out that the group [in question] operated with the acquiescence of the Colombian army, which had provided training, weapons and cover for the group’s actions. (…).1166 It also noted Colombia’s failure to provide any evidence refuting the claims and the failure to conduct an effective investigation for twenty-one years.1167 The HRC concluded ‘that the forced disappearances (…) are attributable to the Colombian State’, amounting to a violation of Articles 6, 7, and 9 ICCPR.1168 There are multiple relevant points here, and slightly different ways to interpret the HRC’s reasoning. First, the State’s legal recognition of the paramilitary groups as well as the army’s active involvement in some of their operations may have warranted the attribution of (all) their conduct to Colombia. The HRC did not expand on this or apply any control test, but perhaps the State’s control over the group was such that the HRC considered the latter as a de facto organ of the State.1169 Second, it is relevant that similar to the notion of torture as defined in the CAT, the notion of enforced disappearance as defined in the ICPPED requires a level of State involvement. The definition of enforced disappearance is any deprivation of liberty ‘by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment (…).’1170 The HRC may have interpreted the definition of enforced disappearance in the ICPPED as a negative obligation binding the State, including an obligation not to authorise, support or acquiesce in enforced disappearances. Then, it may have held Colombia responsible for its own conduct amounting to a breach of that obligation, in accordance with the default rule as laid down in Article 4 ASR for de jure State organs. Third, the HRC may have used acquiescence as a ground for attribution of conduct that it considered specific to the crime itself.1171 The lack of clarity on all this also stems from the fact that the majority decision does not specify whether Colombia had breached its negative obligations or its substantive positive obligations.1172 Reading the decision, one could assume the former, but in his separate opinion, Committee member Shany stated 1166 Id. [Emphasis mine] 1167 Id, paras 9.3 and 9.4] 1168 Id, para 9.3. [Emphasis mine] 1169 See ICJ Bosnian Genocide paras 392-393, and Separate Opinion of Committee members Rodríguez-Rescia and Salvioli (concurring), para. 4, concluding that ‘there can be no denying that these irregular armed groups were acting as de facto agents of the State at the time the events occurred.’ See also Berkes (2021) 216-217. 1170 See Article 2 ICPPED. [Emphasis mine] 1171 See Guercke (2021) 111-112 and 115 (and fn 49). 1172 See also Separate Opinion of Committee members Rodríguez-Rescia and Salvioli (concurring), para. 2, noting that the majority ‘should have elaborated more on its arguments with regard to State responsibility for acts committed by third parties given the central role played by non-State agents in the specific circumstances of the instant case.’ See also para. 5. PROEF PS Joelle Trampert.job_08/28/2024_105A 210 that he agreed with the majority in that ‘the State party should indeed have been found in breach of its positive obligations under articles 6, 7 and 9 [ICCPR] (…).’1173 He disagreed with the majority on the point that there had been a violation of Article 16 ICCPR, as there was not enough evidence of direct State involvement.1174 From this, it could be inferred that the majority found Colombia in breach of its positive obligations alone, but this would then mean that an attribution test is redundant. 5.3.2.3. The implied complicity rule in the right to life The HRC’s General Comment on the right to life explicitly references the general complicity rule as laid down in Article 16 ASR. In the same paragraph (paragraph 63) as the one which includes the reference to the functional model for jurisdiction, cited above in 5.3.1.1, the HRC noted: In light of article 2 (1) of the Covenant, a State party has an obligation to respect and ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner (see para. 22 above). States also have obligations under international law not to aid or assist activities undertaken by other States and non-State actors that violate the right to life.1175 This reference to complicity straight after the interpretation of jurisdiction clearly indicates that the HRC considers the Covenant to apply when States assist in the commission of a violation of the right to life in a direct and reasonably foreseeable manner.1176 In other words, if an act of assistance impacts an individual’s right to life in a direct and reasonably foreseeable manner, this can give rise to a jurisdictional link between said individual and the assisting State. Presumably, this also applies to other obligations, including the prohibition of torture and severe violations of the right to liberty and security such as arbitrary and unlawful detentions and enforced disappearances. In sum, States can be responsible for complicity in a serious human rights violation under the ICCPR, even when that violation occurs abroad. Besides framing the non-complicity rule as a negative obligation, the HRC also considered it to apply in relation to violations of the right to life by States as well as NSAs. In support, the HRC cited Article 16 ASR and the ICJ’s Bosnian Genocide case, which, as already discussed, also applied the rule in Article 16 ASR by analogy in a State-NSA and cross-border constellation. This is further evidence for the general complicity rule also applying to State-NSA complicity. 1173 Separate Opinion of Committee member Shany (partly concurring and partly dissenting), para. 1. 1174 Id. 1175 HRC General Comment No. 36 para. 63. [Emphasis mine] 1176 See also Milanovic (2021) 1354-1355. PROEF PS Joelle Trampert.job_08/28/2024_105B 211 5.3.3. Conditions for complicity Before turning to the question how State responsibility for complicity can be assigned in an extraterritorial context, this paragraph sets out the conditions for complicity under the ICCPR. 5.3.3.1. The material and nexus element Articles 6, 7, and 9 ICCPR impose a wide range of obligations on States. Save the obligations to refrain from interfering directly with these rights (i.e., killing or torturing) and the prohibition of refoulement, which can only be breached by active conduct, all other obligations, including the prohibition of complicity, can be breached when States remain passive.1177 While the HRC did not use the concept of complicity proper in its decision in Alzery, it did hold Sweden responsible for the treatment contrary to Article 7 ICCPR inflicted by other State officials on account of Swedish officials’ acquiescence. As discussed above, Sweden’s acquiescence appears to have been used more as an attribution rule than a (non-attributive) complicity rule, but it might also have been understood as an independent obligation, i.e., a prohibition of acquiescing in acts of torture. Regardless, the point here is that States can also incur responsibility for complicity in or other contributions to serious human rights violations by omission. Indeed, in the case of Mr Alzery, the Swedish authorities first handed him over to American officials and then allowed the mistreatment (i.e., acts of torture) to take place. As for the nexus element, the well-known paragraph from Munaf contains a clear causality test for State responsibility for extraterritorial human rights violations, namely that the State party was a ‘link in the causal chain that would make possible violations in another jurisdiction’. However, this test has been developed in the context of refoulement cases, which concern risk-based responsibility ex ante (even though responsibility is practically always assigned ex post) instead of complicity proper. The HRC did not include any explicit causality test in either Alzery or Serna and Others, the cases which can – albeit in a purely territorial context – best be qualified as complicity. In the most remote instance of the potential responsibility of a State in connection with human rights violations committed by other actors abroad, i.e., where States fail to regulate corporate conduct, the HRC focussed mostly on the nexus between the State’s failure to regulate the conduct of corporations domiciled in its jurisdiction and the alleged harm, rather than on how the failure to regulate that conduct enabled the corporations to commit (or contribute to) abuses that can be qualified as human rights violations in the first place. As explained in Chapter 2, the ILC’s Commentary to Article 16 ASR does not clearly separate these two points either, but there is a difference. On the one hand, there is the connection between the State’s conduct and the ultimate harm, which matters mostly for the reparations stage (and, apparently, for the admissibility stage); on the other hand, there is the connection between the conduct of the assisting State 1177 See also HRC General Comment No. 36 paras 3, 6, and 17. PROEF PS Joelle Trampert.job_08/28/2024_106A 212 and the conduct of the principal actor, which is relevant for the operation of assigning responsibility for complicity in the principal violation. It should also be noted here that if a case like Yassin and Others would be constructed along the lines of complicity, the corporations might not even be qualified as the principal actors, but as accomplices or actors assisting the principal actors, in that case, the Israeli settlers. In any case and to recall, the general complicity rule requires that the conduct constituting the act of assistance contributed ‘significantly’ to the principal violation. I would therefore conclude that for complicity under the ICCPR, that standard will in any event not be stricter. 5.3.3.2. The knowledge element The HRC has not elaborated on the knowledge element of complicity in its General Comment on the right to life. The requirements could thus be the same as for the general complicity rule, namely, that the assisting State was practically certain that the principal violation would occur, and still consciously decided to assist anyway. One can assume, as with the nexus, that the knowledge standard for responsibility for complicity under the ICCPR will in any event not be stricter than the one for the general complicity rule. It could possibly even be looser, and closer to the one used by the ECtHR. As seen above, the ECtHR uses the standard of constructive knowledge for situations where the harm is not directly caused by the State, but emanates from another actor: with the principle of non-refoulement, breaches of positive obligations, or responsibility for complicity, the crux is always whether the State should have known of the risk of the violation occurring at that moment in time. Such a standard imposes on States a duty of due diligence to make enquiries, which the general complicity rule does not. The positive substantive obligations inherent in the rights laid down in the ICCPR similarly require States to act diligently to prevent harm from occurring. Such an obligation to act is triggered once the risk of the harm is ‘reasonably foreseeable’ to the State.1178 If the State fails to take steps to prevent, suppress, or mitigate the harm despite having the capacity to do so, it will be responsible for that failure. In the case of A.S. and Others, Italy was aware of the risk and the likelihood that the persons on board the vessel in distress would drown if nobody intervened, but despite its awareness and ability to act, Italy did too little, too late. In the case of Alzery, Sweden was aware of the risk of Mr Alzery’s mistreatment at Bromma airport, and even witnessed it materialise, yet made no attempt to intervene.1179 This case is also a good example of an assisting State having actual knowledge of the commission of the principal violation, and evidently intending to facilitate. It can be concluded that Sweden’s conduct in that case, at least with respect to the knowledge element, would have reached the threshold of complicity under the law of State responsibility too. 1178 Id, paras 6-7, 18, and 21. 1179 HRC Alzery para. 11.7. PROEF PS Joelle Trampert.job_08/28/2024_106B 213 5.3.3.3. The dual role of knowledge A final point that needs addressing is the dual role of knowledge for responsibility under the Covenant. As seen in 5.3.1 above on extraterritorial jurisdiction, knowledge plays a key part in the Covenant’s extraterritorial applicability: the Covenant applies – meaning that States have obligations, including an obligation not to assist in the commission of human rights violations by others – in relation to any person whose rights are affected by the State’s activities in a direct and reasonably foreseeable manner. This is why Italy had obligations vis-à-vis the persons in distress in A.S. and Others and was found responsible for breaching them. Ollino has highlighted that this means that the same criterion – ‘reasonable foreseeability’ – is used to determine, first, whether human rights obligations apply, and second, whether the State fulfilled its obligation to prevent reasonably foreseeable harm from occurring. The functional model for jurisdiction conflates these two operations.1180 The tests for the Covenant’s extraterritorial application and for the content of States’ positive obligations are indeed the same. Yet this is not necessarily problematic. First, if the prohibition of complicity is understood as a (purely) negative obligation instead of a positive obligation of due diligence, any issue related to these conflated tests would not arise. Second, if a State incurs responsibility for complicity under the ICCPR when it ‘should have known of the risk’, the tests would indeed be identical. But if the standard for responsibility for complicity under the ICCPR is higher than constructive knowledge, a State would have an obligation to refrain from assisting in the commission of a violation when the impact of that assistance is reasonably foreseeable, but would only incur responsibility for complicity in that violation if it was practically certain that the principal violation would be committed and still decided to assist anyway. Still, even if States can incur responsibility for complicity under the ICCPR on the basis of a standard of constructive knowledge, the fact that the tests for the Covenant’s applicability and for State parties’ responsibility are the same, is not, in my view, necessarily problematic. There are other areas where the same or a similar test is used for different separate concepts or operations, e.g. the test of effective control over an area for extraterritorial jurisdiction, and effective control over an entity and its conduct for attribution of that conduct to the State. In addition, it is not unimaginable that the impact on someone’s rights is reasonably foreseeable, but that the State in question did all that could have been expected to mitigate that risk, and is thus ultimately not responsible, or at least not for complicity. 5.3.4. Responsibility for complicity and other contributions in an extraterritorial context This paragraph addresses the question how the Covenant could apply when a State party is complicit in, otherwise contributes to, and/or fails to regulate the conduct of NSAs in an extraterritorial context, i.e., where the victim is located abroad but within the State’s functional jurisdiction. The same three 1180 See again Ollino (2022b). PROEF PS Joelle Trampert.job_08/28/2024_107A 214 scenarios are considered here: the case of M.Z. v Belgium, involving alleged complicity in torture in Guantánamo Bay; the case of S.S. and Others v Italy, regarding alleged complicity in pull-backs in the Mediterranean Sea; and a hypothetical case concerning international arms trade. 5.3.4.1. M.Z. v Belgium To recall, Mr Zemmouri’s case was probably rejected by the ECtHR because Belgium had not exercised jurisdiction over him in Guantánamo Bay, and his case was subsequently declared inadmissible by the CmAT because the ECtHR had already ‘examined’ it. If the case would have been communicated to the HRC instead and the admissibility requirements in the First Optional Protocol to the ICCPR would have been met, would Belgium have been responsible for complicity in torture under the Covenant?1181 First, Mr Zemmouri would likely have been within Belgium’s Article 2(1)-jurisdiction: States party to the Covenant have an obligation to respect and ensure respect for the rights of all persons subject to their jurisdiction, which includes individuals whose rights are affected by the State’s activities in a direct and reasonably foreseeable manner. Participating in the interrogations and sharing unverified and incriminating information with the US undoubtedly affected Mr Zemmouri’s right to be free from torture in a direct and reasonably foreseeable manner. Second, and as argued in 5.2.4.1 above, the requirements of the general complicity rule as laid down in Article 16 ASR would likely have been met. This means that Belgium could incur responsibility for complicity, and that responsibility could also have been established under the ICCPR. If the facts as submitted by the applicant in the communication to the CmAT are accurate, then complicity is not only a possible basis, but also the most appropriate basis for Belgium’s responsibility. A finding of responsibility for complicity would best reflect what Belgium actually did, which was knowingly and significantly contribute to torture carried out by US agents in Guantánamo Bay. Belgium did not carry out acts of torture itself, or instruct, direct, or control US agents to do so, both of which would warrant attribution of conduct and result in direct responsibility. Although the HRC may have used it as such, under the general rules of State responsibility, acquiescence is not a ground for attribution of conduct. Belgium did also not merely fail to take steps of due diligence in order to prevent US agents from committing acts of torture; on the basis of the communication, it can be concluded that Belgian agents actively facilitated them. Just because complicity automatically encompasses a failure to take measures to prevent, this does not mean that assigning responsibility for a breach of a positive obligation of due diligence alone is the best solution.1182 1181 Cf Article 5(2)(a) of the First Optional Protocol to the ICCPR. 1182 See also, again, Milanovic (2022) 238-239 for this point on the ECtHR’s rendition case law. PROEF PS Joelle Trampert.job_08/28/2024_107B 215 5.3.4.2. S.S. and Others v Italy Could Italy incur responsibility for complicity in or other contributions to the Libyan coastguard’s violations of the right to life and the prohibition of torture and ill-treatment under the ICCPR in the case of S.S. and Others currently pending before the ECtHR? In light of the functional model for jurisdiction and the HRC’s decisions in A.S. and Others, Italy would probably be found to have exercised jurisdiction over the victims in S.S. The totality of Italy’s conduct, i.e., concluding the MOU with Libya, financing and training the Libyan coastguard, and directing or allowing the Ras Jadir to rescue the people in distress, all had a direct and reasonably foreseeable impact on the victims’ ability to enjoy their rights.1183 The ‘special relationship of dependency’ test developed by the HRC in A.S. and Others could also be fulfilled in S.S.: the victims’ initial contact was with the Italian rescue centre, an Italian naval helicopter was in the vicinity of the rescue operation, and Italy had certain obligations under the international law of the sea. As discussed in 5.2.4.2 above, the conditions for complicity would also be met. As the conditions under the ICCPR are not stricter, it can be concluded that if Italy is not directly responsible for the violations at issue, it is responsible for complicity in them. 5.3.4.3. A hypothetical arms trade case The HRC’s General Comment on the right to life notes that States ‘engaged in the deployment, use, sale or purchase of existing weapons (…) must always consider their impact on the right to life.’1184 The HRC did not include any references for this particular statement, but according to the HRC, the ICCPR can apparently govern international arms trade.1185 As for the ICCPR’s extraterritorial application, a State authorising arms exports might have functional jurisdiction over individuals abroad if the decision to authorise an export would affect their rights in a direct and reasonably foreseeable manner. The directness and foreseeability of the impact will depend on the specific circumstances of the case; does the decision to authorise an export directly impact the rights of individuals abroad, and is that impact reasonably foreseeable? The State’s conduct will be causally and geographically further removed from the harm: the State grants a licence to a company operating from its jurisdiction, that company subsequently exports arms to a receiving State, and those arms are then used to commit or facilitate serious violations of IHRL (or IHL) by the receiving State, perhaps even in a third State. But the impact – or the risk of that impact – will always be present, as by design, arms are supposed to kill or critically 1183 Moreno-Lax and Lemberg-Pedersen (2019) 26 and further, especially at 30. 1184 HRC General Comment No. 36 para. 65. [Emphasis mine] 1185 The full sentence reads: ‘States parties engaged in the deployment, use, sale or purchase of existing weapons and in the study, development, acquisition or adoption of weapons, and means or methods of warfare, must always consider their impact on the right to life.’ The HRC only references Article 36 of AP I, which dictates that States are obliged to determine whether the ‘employment’ of new weapons would, in some or all circumstances, be prohibited by the Protocol ‘or by any other rule of international law applicable to the High Contracting Party.’ PROEF PS Joelle Trampert.job_08/28/2024_108A 216 injure people. When a State continues to authorise arms exports despite a clear pattern of IHRL violations in the past, the impact of the authorising State’s conduct – which might be part of a wider foreign policy – will arguably be more reasonably foreseeable. As for the applicable obligations and the State’s responsibility in the case of a breach, the question arises whether a State party could be responsible for complicity under the Covenant when it continues to authorise or otherwise allow exports in such circumstances and human rights violations are committed. The simple answer is yes, provided that the conditions for complicity are met. If the decision to authorise or otherwise allow the transfer significantly contributes to the commission of the principal violation, of which the State had actual knowledge (or practical certainty about its future (re)occurrence) and still decided to continue despite knowing how the arms would be used by the principal actor, this might very well entail responsibility for complicity. The ICCPR may permit a standard of constructive knowledge, as it employs for positive obligations. In light of the HRC’s decision in Yassin and Others as well as the European Commission of Human Rights’ decision in Tugar, the nexus might be the biggest hurdle, but until a case is brought before the HRC, this remains to be seen. Alternatively, responsibility could be assigned for a failure to regulate corporate conduct. The right to life has been found to include an obligation to ‘take appropriate legislative and other measures to ensure that all activities taking place’ within States’ jurisdiction, which have a ‘direct and reasonably foreseeable impact on the right to life of individuals outside their territory, including activities undertaken by corporate entities based in their territory or subject to their jurisdiction, are consistent with [the right to life]’.1186 The foundations for extraterritorial effect are not the most solid, but this part of the General Comment is indicative of the recognition in international law that corporate conduct can and does violate human rights. Similar to the clause concerning an obligation to establish the liability of legal persons in the DACAH and the rationale for the ATT, the HRC has taken the position that States have an obligation to regulate corporate conduct at home which adversely impacts the right to life of (unknown) individuals abroad. The ICCPR is therefore an instrument to consider for individuals whose right have been violated by a principal actor with arms provided by State parties to the ICCPR. 5.4. Interim conclusion Provided certain conditions are met, the ECHR and the ICCPR both have extraterritorial application. The ECHR and the ICCPR also both contain rules which are relevant in cases of territorial complicity. The endeavour of applying the ECHR to extraterritorial complicity scenarios might give the impression of an attempt to argue that ‘1+1=3’, but while acknowledging that the general complicity rule cannot readily be applied under a human rights treaty regime that is conditioned by IHRL-jurisdiction, the 1186 HRC General Comment No. 36 para. 22. PROEF PS Joelle Trampert.job_08/28/2024_108B 217 assumption that IHRL categorically does not govern situations where States assist in the commission of serious human rights violations by other actors abroad, no longer holds water. A large part of this Chapter has been devoted to the concept of jurisdiction in the ECHR and the ICCPR. The ECtHR’s approach to extraterritorial jurisdiction is more cautious than that of the HRC, but it is not necessarily clearer. The clearest basis for jurisdiction outside the State’s own territory is the spatial model, which is based on a State’s effective control over territory, whether or not through its support of and influence over the local administration or an NSA that controls the territory in question. In most extraterritorial complicity scenarios, this will not apply. Depending on the facts of the case, the personal model might offer more possibilities, but in the more remote scenario of a (wrongful) cross-border contribution, it will also not apply. For the ECHR, this leaves the third model, which renders applicable procedural obligations when there is a jurisdictional link between the victim and the State on the basis of ‘special features’. As the three scenarios discussed in 5.2.4 show, States party to the ECHR might at the very least be found to have jurisdiction in relation to the procedural limbs of Articles 2, 3, or 5 ECHR; they might have a procedural obligation to investigate certain conduct that contributed to the principal violation, and could potentially incur responsibility under the Convention if that obligation is not fulfilled. Procedural obligations can be understood broadly, so as to include decision-making processes – as the Court did in H.F. and Others – or possibly even risk assessments. Such an approach would considerably broaden the scope of cases that could be heard on this jurisdictional basis. While this suggestion might seem far-fetched, no obligations would be imposed on States that they have not already consented to be bound by under (albeit other regimes of) international law. The ECtHR’s approach to States’ responsibility for complicity or other contributions to serious human rights violations on home soil is commendable. In the extraordinary rendition cases, the Court held various Contracting States responsible not only for breaching the prohibition of refoulement and failing to protect people within their jurisdiction from serious human rights violations committed by third party actors, but also for their complicity in those violations. The extraordinary rendition cases are also one category in a larger group of cases where States were held responsible not just for failing to prevent and suppress third party violations, but rather for ‘acquiescing and conniving’ in them. This formula is sometimes used in relation to positive substantive obligations, sometimes in relation to positive procedural obligations, and sometimes as a type of system-specific complicity rule. While acquiescence and connivance does not equate with complicity proper in each and every case, it always designates a degree of involvement that is closer to complicity than a failure to intervene. It can also be concluded that the Court is developing its own approach to responsibility for complicity, which started in El-Masri and continued in the subsequent extraordinary rendition cases. In one recent case concerning inter-prisoner violence, the Court held Russia responsible for complicity in acts of ill-treatment, and did so without reference to acquiescence or connivance. This supports the conclusion that acquiescence or connivance is not the only iteration of an ECHR-specific complicity rule, but that it is a broad notion which captures conduct, including omissions, which goes beyond and is thus more PROEF PS Joelle Trampert.job_08/28/2024_109A 218 blameworthy than a failure to intervene. While the jurisprudence is not always consistent and clear, if the State actively facilitated the principal violation, the Court will use the label of ‘complicity’. As for the ICCPR, the HRC’s General Comment on the right to life contains three points that are highly relevant to this study: first, it unequivocally adopted a functional approach to jurisdiction; second, it stated immediately thereafter that ‘States also have obligations under international law not to aid or assist activities undertaken by other States and non-State actors that violate the right to life’; and third, it noted that States have the duty to regulate corporate conduct at home which impacts the rights of individuals abroad in a direct and reasonably foreseeable manner. Of all the different conceptualisations of jurisdiction studied, the functional approach seems to be one of the better models that imposes human rights obligations irrespective of State borders. Acknowledging the critiques and risking an oversimplification, it is, in my view, not asking too much of States to abide by IHRL whenever and especially wherever they act, provided and to the extent that they can reasonably be expected to do so. More concretely, if States are able and willing to participate in counter-terror operations, outsource migration control, and authorise arms exports, it is not too burdensome for them to take the right to life, the prohibition of torture, and the right to liberty and security into account when making those decisions and implementing their policies. The exact demarcations of functional jurisdiction can and will be fine-tuned in jurisprudence and other output. Admittedly, the HRC’s legal reasoning regarding the foundations of the functional model is not always as clear as can be. The HRC, as well as other human rights bodies and courts for that matter, could develop more detailed and robust legal arguments, which would not only enhance the legitimacy of this approach, but would also increase the likelihood that the ECtHR one day engages with it too. One open question is how functional jurisdiction exactly relates to the ‘home State’ obligation to regulate corporate conduct. Whereas one iteration of this model brings persons whose right to life is directly and reasonably foreseeably affected by the State’s military or other activities within that State’s jurisdiction, another part of the HRC’s General Comment speaks of the obligation to ensure that corporate activities which take place within the State’s jurisdiction and directly and reasonably foreseeably impact the right to life of individuals abroad, are consistent with the right to life. While these tests are similar, there is a difference: one hinges on the impact of the State’s own conduct, the other is triggered by the conduct of NSAs which are within the jurisdiction of the home State. Given that no duty to regulate corporate conduct in a cross-border context has been established in positive human rights law, it is still up for debate to what extent such a duty already exists. Having said that, other legal regimes do require States to regulate corporate conduct, the most prominent example being the ATT. IHL arguably includes such a duty too. EU legislation is excluded from this study, but it is worth noting that some EU Regulations also require EU member States to control the exports of goods, in particular devices or drugs that can be used for torture or the death penalty and dual-use goods such PROEF PS Joelle Trampert.job_08/28/2024_109B 219 as digital surveillance technologies.1187 Understanding the obligation to protect human rights to include an obligation of due diligence to regulate corporate conduct ‘at home’ would be a significant expansion of States’ extraterritorial obligations. It would also be a major step forward for human rights protection. The duty not to assist in the commission of serious human rights violations by States and NSAs under the ICCPR is less contentious. Importantly, besides explicitly recognising that States can be complicit in the wrongs of NSAs, the HRC has accepted that this duty can apply extraterritorially too. The conditions for complicity under the ICCPR probably do not differ from the general complicity rule, although given that IHRL commonly accepts a lower standard of knowledge for responsibility to ensue, the same might apply to complicity, although there is no direct precedent for this in the HRC’s output. Two cases in particular, Alzery and Serna and Others, can be qualified as complicity scenarios: the former relates to Sweden’s involvement in an extraordinary rendition, the latter relates to Colombia’s involvement in an enforced disappearance. In both cases, the HRC appears to have held the respondent States responsible on the basis of their acquiescence, which it may have used as a special rule for attribution of conduct, but perhaps also as a distinct negative obligation. In the case of Serna and Others, the State was also so directly involved and had such control over the NSA which perpetrated the act, that the totality of the State’s conduct may have warranted attribution of the NSA’s conduct. Another conclusion that can be drawn is that the way in which applicants frame their claims matters. In Alzery, the applicant expressly alleged that the treatment suffered was attributable to Sweden, the fact that Swedish agents had not touched him or otherwise actively participated in his abuse notwithstanding. Finally, the HRC’s endorsement of the functional model for jurisdiction means that the Covenant can govern States’ assistance in the wrongdoing of another actor, if and when that assistance impacts the rights of individuals abroad in a direct and reasonably foreseeable manner. Thus, under the Covenant, States cannot do by another what they cannot do by themselves, and cannot do by another abroad what they cannot do by another at home. 1187 See the ATR and Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast) OJ L 206/1 (DUR). PROEF PS Joelle Trampert.job_08/28/2024_110A PROEF PS Joelle Trampert.job_08/28/2024_110B 221 CHAPTER 6. CONCLUSION International crimes and serious human rights violations are rarely committed by one actor, acting alone. The principal actor, be it a State or NSA, will often receive help and support from secondary actors, including States. This study questioned how international law can assign responsibility to States for complicity in or other contributions to international crimes and serious human rights violations, especially extraterritorially. Simply put, States are responsible for complicity if all the conditions for complicity are met. If one of these conditions is not fulfilled, States may still be responsible for contributing to the commission, the continuation, or the risk of the principal violation on the basis of other legal rules. Which rules apply depends on the context, where the nature of the principal violation, the nature of the State’s assistance, and the physical location of the victim are particularly decisive. By bringing all these rules together, this study presents a better picture of which rules apply when States assist other actors in volatile situations, and how these rules interrelate. The rules selected for this study can be organised in four different categories. This categorisation does not purport to be absolute or exhaustive, but aims to enhance our understanding of when normally lawful conduct becomes unlawful, and what this means for a State’s international responsibility (6.1). That responsibility should reflect the actual degree of the State’s involvement. Just because many, if not all forms of assistance qualify as breaches of positive obligations of due diligence, this does not mean that States should bear responsibility for failing to prevent the violation alone (6.2). Another central claim of this study is that responsibility for involvement in the commission of serious violations of IHRL abroad can also be assigned under the ECHR and the ICCPR (6.3). 6.1. Complicity and other contributions: four categories of rules Besides examining the general complicity rule and various implied or regime-specific complicity rules, this study identified and examined rules which are functionally similar or otherwise relevant. Bearing in mind the material and temporal differences, all apply to situations which are characterised by grave and often irreparable harm. The following categories offer a more comprehensive and detailed approach to States’ role and responsibility in relation to wrongdoing of other actors which causes such harm. These are (1) complicity rules proper; (2) rules prohibiting contributions below the level of complicity; (3) rules prohibiting conduct in relation to a risk; and (4) rules requiring States to regulate or investigate. 6.1.1. General, implied, and regime-specific complicity rules A State which contributes to another actor’s wrongdoing – the principal violation – is responsible for complicity in that violation if the contribution was significant, if it did so knowingly, and if it was PROEF PS Joelle Trampert.job_08/28/2024_111A 222 prohibited from committing that violation itself. Complicity is a particular basis for responsibility in connection with a(nother) wrong, and is always derivative in nature. This means that only if and when the principal violation is committed, can responsibility for complicity arise. The general complicity rule can be understood to prohibit all conduct which constitutes complicity, but it is not, strictly speaking, a self-standing substantive obligation. It does not impose any new obligations on States which they do not already bear; rather, it presupposes that inherent in the obligation to refrain from committing X is an obligation to refrain from complicity in X too. This can be inferred from the ILC’s Commentary to Article 16 ASR and the ICJ’s ruling in the Bosnian Genocide case, and this has been made explicit in the ILC’s Commentary to the DACAH and the HRC’s General Comment on the right to life. The same logic can be applied to the Torture Convention or other human rights treaties too (States are prohibited from committing torture, and therefore also prohibited from complicity in torture), bearing in mind the jurisdictional clauses. Many types of conduct can result in complicity. This study focused on forms of assistance that would normally be lawful, but which ‘become tainted with international wrongfulness by the mere fact of being contributory to the commission of an internationally wrongful act by another’.1188 But-for causation is not required, and for complicity to ensue, the contribution must be ‘significant’. Because the general complicity rule applies to all types of principal violations, the conditions for complicity are cumulative and the knowledge requirement is particularly strict. Most scholarly debate concerns this requirement, and revolves around whether States are complicit if they have ‘knowledge’ or ‘intent’. But standards of knowledge can vary, depending on their object.1189 Based on the ILC’s Commentary, the Bosnian Genocide case, and the academic literature, it can be concluded that States which significantly contributed to the principal violation will incur responsibility for complicity if they (i) had knowledge of their own conduct constituting the act of assistance; (ii) had knowledge of the commission of the principal violation, or practical certainty that the principal actor would commit it; and (iii) intended to facilitate the commission of the principal violation. Such intent can be inferred from knowledge of how the assistance would be used, followed by the decision to assist anyway. States cannot evade responsibility by avoiding reasonably credible and publicly available information concerning the principal violation, as the knowledge element is fulfilled if it is proven that they were ‘wilfully blind’. The non-assistance rule in the aggravated responsibility regime presumes that all States have knowledge of the commission of a ‘serious breach’ of a jus cogens norm. As this presumption applies to all States, this is certainly the case for States which have been helping and supporting the principal actor over a longer period of time. Furthermore, States’ access to information is far easier and greater than it was twenty years ago. While arguments invoking ‘insufficient information’ will continue to be advanced, 1188 See again Ago in ILC Yearbook 1978, Vol. II(1), 52, para. 52. 1189 See again Milanovic (2021) 1280. PROEF PS Joelle Trampert.job_08/28/2024_111B 223 States assisting the principal actor cannot maintain that they were not aware of at least the risk of international crimes or serious human rights violations when these are committed before our very eyes. The requirement that the assisting State and the principal actor are both bound by the obligation breached is a given in the context of this study. All States are bound by the obligations not to commit genocide, war crimes, or crimes against humanity, and all States must respect and secure to all individuals within their jurisdiction the right to life, the absolute prohibition of torture and other ill-treatment, and the right to liberty and security, either under a treaty regime or international custom. NSAs are also bound under various legal regimes not to commit these acts, so while Article 16 ASR was originally drafted to cover inter-State assistance, the customary complicity rule applies when States assist NSAs too. As the ICJ’s, the ECtHR’s, and the HRC’s jurisprudence shows, States can and do facilitate the wrongs of NSAs. Regarding the implied complicity rule in the DACAH, the ILC has copied Article 16 ASR’s exclusive inter-State wording. But regarding the prohibition of complicity inherent in the right to life, the HRC has acknowledged that it applies to violations by NSAs too. As States can incur responsibility for complicity in wrongful acts of IOs and given the fact that NSAs are prohibited from committing all the principal violations central to this study, there is no good reason why the general complicity rule would not cover State-NSA constellations. A final matter is an issue that arises in relation to the death penalty. As this type of punishment is still not prohibited under positive international law, one could argue that where an abolitionist State (knowingly) provides (significant) MLA to a retentionist State and the execution is carried out, the former is not responsible for complicity because there is no principal violation to be complicit in. In my view, the death penalty is by definition a cruel and inhuman punishment, and any type of assistance which contributes to it can (and should) result in responsibility for complicity under international law. The ECtHR has cited the general complicity rule in its extraordinary rendition case law, but instead of directly applying it, it has developed its own approach. States have been found responsible for ‘acquiescence or connivance’ in human rights abuses committed by NSAs, a notion which is conceptually very close to Special Rapporteur García-Amador’s neglected idea of ‘connivance’ in wrongs of NSAs. The Court also used this formula in the extraordinary rendition cases, where Contracting States assisted the CIA within their territory. The exact basis for responsibility is not always completely clear, but the Court qualified these States’ role in terms of acquiescence and connivance, active facilitation, and – after El-Masri – complicity in the principal violations. While the notion of acquiescence or connivance has been used to assign responsibility for complicity, including by omission, it also traverses the other categories. What can be said with certainty, however, is that the ECHR contains a regime-specific complicity rule, as evidenced by the extraordinary rendition case law and the case of S.P. and Others. In the latter, Russia was held responsible for complicity in systemic inter-prisoner violence without any reference to the prison authorities’ acquiescence or connivance. The ECHR-specific complicity rule deviates from the general complicity rule in that States will incur responsibility for complicity when they should have known of the principal violation. PROEF PS Joelle Trampert.job_08/28/2024_112A 224 6.1.2. Non-assistance rules: contributions below complicity The non-assistance rule reflected in Article 41(2) ASR and the prohibition of assistance implicit in CA1 make up the next category of rules, which capture contributions below the threshold of complicity. The rules reflected in Article 41 ASR are triggered by a serious breach of a jus cogens norm. As a consequence of such a breach, all third States are prohibited from assisting in the maintenance of the resulting unlawful situation. Classic examples of unlawful situations are colonial domination or apartheid rule, but the ILC added in the Commentary that the rule also applies to continuing violations. Paying more attention to this aspect of the rule would increase its practical value. Notwithstanding the difficulty of determining when breaches are of a continuing character – enforced disappearances are, but what about a pattern of serious violations of IHL? – the rule can apply alongside or instead of the general complicity rule, depending on the context. Assisting in the maintenance of an unlawful situation or a continuing violation does not lead to responsibility for complicity in that violation per se, but will entail the assisting State’s independent responsibility for breaching the obligation not to assist. The non-assistance rule does not include a knowledge element, as all States are presumed to be on notice of the commission of the principal violation. This presumption of knowledge is also relevant for establishing knowledge for the purpose of complicity. CA1 of the Geneva Conventions, or more precisely, the negative limb of the external dimension of the overarching obligation to ensure respect for IHL, includes a prohibition of assistance in violations of IHL. The rationale for this rule is that it would be contradictory if CA1 required States to ‘respect and ensure respect’ for IHL by their own armed forces, but did not prohibit them from contributing to violations of IHL by others.1190 All States are prohibited from providing assistance if violations of IHL are factually identifiable or objectively foreseeable. If they do provide assistance and this reaches the level of complicity, then responsibility will be assigned on that basis. But the prohibition of assistance is of added value precisely because it covers forms of assistance below the level of complicity too. This negative obligation exists alongside the positive obligation of due diligence. Besides being much less controversial, the negative obligation requires nothing but restraint from States, and will thus never impose any impossible or disproportionate burdens. Although it has not been formally recognised, such a negative obligation, in addition to the implied prohibition of complicity, could be read into the Genocide Convention too. In the extraordinary rendition cases, the ECtHR used the notion of acquiescence or connivance in the context of complicity. In a number of cases concerning violent hate crimes, namely against religious minorities, LGBT+ people, and women, the Court also used the formula under the heading of the positive obligations to protect. While the notion is often used as a system-specific complicity rule 1190 ICRC Commentary to GC III (2020) para. 191. PROEF PS Joelle Trampert.job_08/28/2024_112B 225 (including in these discriminatory hate crime cases, where the State sometimes assisted by omission), it also captures other, or lesser contributions to the principal violation which cannot simply be qualified as mere failures to intervene. State acquiescence and connivance is thus not so much a substantive rule as it is a form of involvement in principal violations, which are primarily, but not exclusively, committed by NSAs. While the research did not focus on this, it is apparent that the way in which victims bring their claims matters. This notion originated from victims’ complaints, and in more recent cases it was used by victims in their complaints to the Court too. 6.1.3. Risk-based non-assistance rules: the ‘transfer prohibitions’ The prohibition of refoulement in IHRL and the transfer prohibitions in the ATT capture contributions below the threshold of and before the question of complicity. They expressly require States to assess the risk that the receiving actor would commit the principal violation, and if so, to refrain from allowing the transfer. If a State does not do so despite the risk, it will automatically have breached this prohibition, and will incur responsibility on that basis. Whether or not the principal violation occurs, is entirely immaterial to the Sate’s responsibility. These rules are a powerful tool for those seeking to prevent (further) grave and often irreparable harm, or at least that other States facilitate or exacerbate it. The principle of non-refoulement, explicit in Article 3 CAT and draft Article 5 DACAH and implicit in the ECHR and the ICCPR, prohibits States from transferring an individual to another State if that would expose the individual to the real risk of serious harm, including deprivations of life, torture or other ill-treatment, and unlawful and arbitrary detention. This prohibition is absolute, and the risk to the individual cannot be balanced against other interests. States are in breach of the prohibition of refoulement as soon as they expose someone to the real risk of which they knew or should have known, and information which comes to light after the transfer has taken place can also inform what the State should have known. While it is irrelevant for the State’s responsibility for a breach of the prohibition of refoulement whether or not the principal violation ultimately occurs, the transfer of a person can significantly contribute to the commission of that violation, and as the case of El-Masri shows, the prohibition of refoulement can be highly relevant in complicity scenarios too. Moreover, in the cases against Poland, Romania, and Lithuania, the ECtHR held that transfers which were enabled by the State also lead to a breach of its obligations under the Convention. More so than any of the other treaty regimes studied, the ATT applies to scenarios where the geographical distance between the assisting State and the victims of the principal violation is particularly great. It also imposes obligations of restraint in anticipation of principal violations in the receiving State. Article 6(3) ATT prohibits States from authorising a transfer if they have knowledge at the time of the authorisation that the arms or other items would be used in the commission of international crimes. Despite the high standard of knowledge that the arms would be so used (instead of, e.g., a clear risk that they might), this prohibition is absolute. Article 7 ATT requires States to assess PROEF PS Joelle Trampert.job_08/28/2024_113A 226 the potential that the arms would either contribute to or undermine peace and security and whether they could be used to commit or facilitate the commission of a serious violation of IHL or IHRL. After considering any mitigating measures, States are prohibited from authorising an export if there is an overriding risk of any of the negative consequences. This prohibition is not absolute, and the standard of risk is high. Article 7(7) ATT encourages States to reassess authorisations in light of new information. In a civil case in the Netherlands, this was interpreted as an obligation. The value of the ATT will be – and is being – put to the test in domestic courts. Importantly, even if a court considers that a State party’s assessment of the risk was reasonable or that a reassessment of the risk was not required, States which decide to continue authorising or otherwise allowing arms to be transferred to another State where they are used to commit or facilitate a serious violation of IHL or IHRL, expose themselves to the risk of incurring responsibility for complicity, which will be assessed ex post facto. 6.1.4. Other relevant rules: regulation and investigation A final category of relevant rules comprises the obligation to regulate conduct of NSAs domiciled in or operating from a State’s jurisdiction, and the obligation to investigate any potential criminal conduct – including complicity – ex post facto. The DACAH include an obligation to ‘take measures, where appropriate, to establish the liability of legal persons’ for crimes against humanity and other punishable acts. This provision still leaves States much leeway, but it is an important and progressive step. The obligation to ensure respect for IHL also accommodates an obligation to regulate the conduct of corporate actors in relation to a party to a conflict, and the HRC has found such an obligation to exist as part of the positive limb of the right to life. Although the origins of this obligation prior to this General Comment are unclear and the obligation relies on a particularly broad understanding of IHRL-jurisdiction, the HRC’s attention to this matter is commendable, and fits within the ever-increasing focus on corporate accountability for the commission of international crimes and serious human rights violations. The negative impact of corporate conduct is increasingly seen as the business of ‘home States’ too, because it is these States which created the conditions for corporations to conduct their affairs as they did. No such obligation exists under the ECHR, and because of the Convention’s currently more restricted extraterritorial effect, it is not likely to develop in the near future. Somewhat relatedly, but at a later moment in time, States are entitled and sometimes even obliged to investigate how corporations or other NSAs based within their jurisdiction contributed to harm abroad, for example when they exported goods in contravention of the applicable legal framework or if their conduct would amount to complicity (or another mode of liability) in international crimes. Notwithstanding the ECtHR’s narrower understanding of jurisdiction, it has recognised that a jurisdictional link can exist for certain ‘separate and autonomous’ procedural obligations. In light of PROEF PS Joelle Trampert.job_08/28/2024_113B 227 this case law, where ‘special features’ meant that a Contracting State had a procedural obligation to investigate under, e.g., Article 2 ECHR, the obligation to investigate could potentially be used as an entry-point for a case concerning corporate complicity and/or an extraterritorial complicity case. In addition, if agents of a Contracting State are suspected of criminal conduct, the State is arguably obliged to conduct a criminal investigation, also vis-à-vis the victims of that conduct. The Court’s jurisprudence demonstrates that other legal rules, from other legal regimes, can give rise to and inform the content of this investigative duty. In certain cases concerning violent and discriminatory hate crimes committed by NSAs, the ECtHR has found that a State’s failure to effectively investigate the principal actor’s conduct can amount to official acquiescence or even connivance in their crimes, thereby resulting in responsibility beyond a failure to fulfil procedural obligations alone. The most prominent example of this is the case of Women’s Initiatives, where Georgia’s failure to secure a timely and objective criminal investigation and punish the perpetrators of homophobic attacks during the IDAHO event in 2012 contributed to the proliferation of similar crimes during the IDAHO event the following year. The Court has not equated a State’s failure to investigate with its acquiescence or connivance in the principal violation outside the context of violent and discriminatory hate crimes, but potentially, that failure could amount to a form of connivance in that violation in other scenarios too. 6.2. Assigning responsibility to reflect the degree of involvement If a State helps and supports the principal actor to the extent of direction or (effective) control, this warrants attribution of the conduct constituting the principal violation to that State.1191 The State will then be directly responsible for that violation, which is the most comprehensive form of liability under international law. The thresholds for attribution under international law are high, and there is much to be said for this: attribution of conduct means that that the State committed it, and that it bears responsibility for the principal violation as such. This form of responsibility should be reserved for situations where the State did indeed commit, through its agents or NSAs under its control, the violation in question, or where it adopted and acknowledged the violation as its own.1192 The HRC and to a lesser extent the ECtHR have sometimes used wording that gives the impression that acquiescence or complicity has been employed as a ground for attribution of conduct too, and while these regimes are at liberty to develop their own rules, it is more likely that they sought to put the respondent State’s conduct front and centre and meant to assign responsibility for the violation of Article X or Y, without paying much attention to the customary attribution rules under general international law. 1191 See Articles 8 and 17 ASR. 1192 See Article 11 ASR. PROEF PS Joelle Trampert.job_08/28/2024_114A 228 Complicity can be regarded as a ‘second tier’ of State responsibility, in that it designates a lesser degree of involvement in the principal violation. If a State knowingly and significantly assists the principal actor, be it a State or NSA, it will be responsible for complicity in the principal violation under international law. In order to respect the customary attribution rules and to simultaneously avoid any unprincipled accountability gaps, States should incur responsibility for complicity in the wrongs of NSAs too. If the State lacked knowledge or its contribution was insignificant, then responsibility for complicity will not be assigned. The threshold for complicity under international law is high, and here too, this is not without good reason. Besides the fact that the general complicity rule applies regardless of the purpose or status of the obligation breached, a finding of complicity indicates a certain gravity. To say that a State did not just fail to prevent genocide or torture, but that it enabled or facilitated it, expresses a culpability and attaches a stigma that a finding of a failure to act with due diligence cannot reflect. This also means that if a State did assist in the commission of torture, as the European States which were complicit in the extraordinary rendition programme did, they should be held responsible for precisely that.1193 The same argument can be made for other, lesser, contributions, as has been highlighted in relation to the Bosnian Genocide case. There is room to recognise – or to develop – a ‘third tier’ of State responsibility, situated in between complicity and a failure to prevent a given harm by intervening. During the genocide in Srebrenica, Serbia undisputedly breached its positive obligation to prevent, but its support for the principal actor went beyond a failure to suppress or intervene. States incur responsibility on the basis of the applicable rules, but their factual contribution to the principal violation should always be part of the equation too. The ICJ could have interpreted the Genocide Convention to include a non-assistance rule similar to the one in CA1, which would have been a more suitable basis for Serbia’s responsibility. Recognising that positive obligations of conduct have an important place in international law and IHRL, they should not be used as a one-size-fits-all category for a State’s responsibility when the involvement of that State was in fact far more significant. Just as States should not be found responsible for wrongs that they did not themselves commit, they should equally not merely be found responsible for failing to prevent wrongs that they contributed to. The basis for responsibility and the legal terminology used matter. First, it is important that a judgement adequately reflects what the responsible State factually did or failed to do. For victims, a judgement is a form of formal recognition of the harm suffered, and they will want to see a court express this in corresponding terms. For society, a judgement can function as a historical and public record, and it can be a reference point for (albeit a legal version of) ‘the truth’. As touched on above, there is arguably less stigma attached to responsibility for a breach of a positive obligation of due diligence than responsibility for complicity in the principal violation, and the former may be more politically palatable for a State seeking to protect its reputation. Second, by resorting to positive obligations of due diligence 1193 Jackson (2015) 197. PROEF PS Joelle Trampert.job_08/28/2024_114B 229 instead of complicity (or the non-assistance rule reflected in the aggravated responsibility regime), the latter notion(s) will remain underdeveloped, which leads to and further perpetuates underuse. Third, a finding of responsibility for failing to intervene versus responsibility for complicity in the principal violation will make a difference for the reparations owed to the victims. This was outside the scope of this research, but it is no less important. 6.3. Applying IHRL to complicity in an extraterritorial context It is no coincidence that Chapter 5, covering the ECHR and the ICCPR, was the longest chapter. The ECtHR and the HRC both have highly relevant output on States’ responsibility for complicity in or other contributions to serious human rights violations. The ECtHR’s jurisprudence is particularly important due to its sheer quantity as well as its quality, and the HRC’s output provides an authoritative interpretation of the most widely ratified human rights treaty. While ‘human rights’ type cases are increasingly being brought before the ICJ, its subject-matter jurisdiction is limited and only States can bring contentious cases. The IHRL-fora are victim-centred by design, and while the individual victim was not central in this study, it is of course their harm which matters most. IHRL-fora might be the only avenue for redress. Other avenues do exist, including and perhaps especially domestically, where, depending on the legal system, victims can rely on the constitution and other domestic legislation, invoke customary or conventional human rights norms, and perhaps refer to the general complicity rule. But the nature of international human rights systems, along with the fact that there is no international court for IHL, means that after they have exhausted available domestic remedies, victims and their lawyers will continue to bring their claims before the ECtHR or other international human rights bodies. Of course, we do not need a court or human rights body to decide that a State is responsible. If the general complicity rule applies and the conditions are fulfilled, States will incur responsibility on the basis of that rule. But the value of a (binding) judgement cannot be overstated. As IHRL’s extraterritorial application is not as limited as it once was, it is worth considering how it applies to extraterritorial complicity too. The ICCPR applies in extraterritorial complicity cases when the assisting State’s conduct has a direct and reasonably foreseeable impact on the rights of the victim. The HRC has already employed this functional approach to jurisdiction in several cases pertaining to positive obligations, and notwithstanding the inevitable question whether the notion of jurisdiction is not being extended too far, the HRC’s approach is better than the current alternative, namely, where States which have knowledge of the risks and have the capacity to act – or, to stop acting – are not considered to have human rights obligations at all. Some might argue that constructing a jurisdictional link between the assisting State and the victim in another State stretches the notion of jurisdiction to breaking point. But just because the victim is geographically far away, this does not necessarily mean that the impact of the assisting State’s conduct was any less direct or reasonably foreseeable. How the functional model applies in such PROEF PS Joelle Trampert.job_08/28/2024_115A 230 cases will have to be tried and tested in practice, but three different scenarios, with varying degrees of remoteness and different sets of facts, have illustrated how this might work. The cases of M.Z. v Belgium and S.S. and Others v Italy would have been admissible in terms of Article 2(1)-jurisdiction, and as a complicity rule has been accepted as an inherent part of the right to life, States which assist in the commission of violations of the right to life (and, by extension, the prohibition of torture and deprivations of liberty too) can incur responsibility under the ICCPR. Even in an arms trade case, which is the hardest to capture by IHRL, the ICCPR could apply. The HRC has found that a jurisdictional link not only exists when a State’s activities impact the rights of individuals abroad in a direct and reasonably foreseeable manner, but also when NSAs’ activities within their territory and jurisdiction do. These same scenarios have been considered in relation to the ECHR. At the time of writing, the ECtHR is unlikely to consider the ECHR applicable in most extraterritorial complicity cases. Yet a jurisdictional link between the assisting State and a victim abroad could be constructed on the basis of ‘special features’ in relation to the State’s procedural duties. First, the fact that other legal rules require States to investigate a death (or act of torture), could be applied to extraterritorial complicity cases too, requiring States to investigate their own agents’ or another actors’ complicity in the commission of the principal violation. Second, the procedural limb is not limited to a duty to investigate; it can relate to a decision-making process too. Taking this idea one step further, it could also be extended to, e.g., the risk assessment process in the context of an arms export authorisation, similar to the one for the principle of non-refoulement. At the same time, it is not necessarily desirable that this third model is developed any further, as it allows the Court to carve out case-specific exceptions and to avoid fully overturning Bankovic. A more coherent and principled interpretation of the personal model or a variant of the HRC’s functional model would be a better solution. This should not be taken as an argument for harmonisation for harmonisation’s sake. Fragmentation is not always a bad thing, and variations can exist across different legal cultures and different geographical regions. Moreover, if an adjudicative body in one system takes a stricter or even regressive stance on a particular issue, it is preferable – from the perspective of effective protection of human rights – that the adjudicative body of another system does not defer to the former, but comes to its own decision. Harmonisation along the lines of the highest possible standard of human rights protection would be an appropriate goal. Law is to a large extent a matter of interpretation. Rather than disregard or reinvent IHRL in an extraterritorial complicity context, human rights treaties, or rather their supervisory bodies and the professionals working within them, are flexible enough to adapt and develop in a way that is aligned with present day needs. The ECtHR can rethink its approach to extraterritorial jurisdiction in a number of pending cases, and should consider what human rights protection means in the second quarter of the 21st century. The HRC could take care to clearly motivate its functional approach to jurisdiction, especially with respect to the extraterritorial effect of the obligation to regulate corporate conduct. PROEF PS Joelle Trampert.job_08/28/2024_115B 231 6.4. Outlook Humankind will likely never be free from the international crimes and serious human rights violations which were central to this study. It is therefore of utmost importance to have in place a comprehensive and robust legal framework so as to hold not only those primarily responsible, but also those who assisted them, to account. Where States provide such assistance, this legal framework already exists, and what has emerged from the study is a patchwork of norms. Not all rules apply to all States at the same time, and discussions about their conditions and their scope will undoubtedly remain. But the bottom line is that when international crimes or serious human rights violations are committed, States are under a legal obligation to refrain from contributing to the commission of these acts, no matter where they occur. Neither the complicity rules nor the other non-assistance rules impose disproportionate burdens on States, and they do not hinder international cooperation. Relatedly, the ideals of free trade cannot come at the price of people’s dignity and lives. States play a key role here, which is increasingly being recognised and codified in law. As the arms trade in particular shows, the facilitation of international trade and the facilitation of conduct which causes grave and irreparable harm are deeply intertwined. PROEF PS Joelle Trampert.job_08/28/2024_116A PROEF PS Joelle Trampert.job_08/28/2024_116B 233 SUMMARY AND SAMENVATTING State Responsibility for Complicity in and Other Contributions to International Crimes and Serious Human Rights Violations From the genocide in Srebrenica in 1995 to the abduction, ‘enhanced interrogation’, and secret detention of alleged terrorists after 9/11, the perpetrators of these crimes did not act alone. The army of the Republika Srpska received political, military, and financial assistance from the State which is now Serbia, and the International Court of Justice (ICJ) ruled in 2007 that the genocide was committed, at least in part, with that assistance. The Central Intelligence Agency of the US government tortured and detained people on European soil, and transferred its ‘high value detainees’ from European airports to detention sites in other countries, including to the base in Guantánamo Bay. In a number of judgements, the European Court of Human Rights (ECtHR) held that certain European States had facilitated the extraordinary rendition programme by creating the conditions for it to happen and not making any attempt to prevent it from occurring. Serbia was ultimately not found responsible for complicity in the genocide, but for failing to prevent it. North Macedonia, Poland, Italy, Romania, and Lithuania have been held responsible for complicity in torture and arbitrary detentions, but not on the basis of the general complicity rule. The question central to this research is how international law can assign responsibility to States for complicity in and other contributions to international crimes or serious human rights violations committed by other actors, especially extraterritorially. Chapter 1 explains the main elements of the research question and the terminology used. Complicity is not a term of art in public international law, but it is common in the doctrine and designates a particular concept and a general rule in the law of State responsibility. Other contributions are also included, as not every act of assistance rises to the level of complicity proper. The study focused on assistance in three ‘international crimes’ and three ‘serious human rights violations’, namely, genocide, war crimes, and crimes against humanity, and deprivations of the right to life, torture and ill-treatment, and deprivations of liberty. Given that these violations can be committed by a State or non-State actor (NSA), State-NSA constellations have been included too. Extraterritorial assistance means that the victim is not physically located in a territory under the control of the assisting State, which generally makes no difference, but can be decisive under international human rights law (IHRL). The thesis is based on a doctrinal study of the applicable law. Besides the law of State responsibility, relevant rules have been identified in specific (treaty) regimes, namely the Genocide Convention, the Torture Convention, the draft Articles on Crimes against Humanity (DACAH), the 1949 Geneva Conventions, the Arms Trade Treaty (ATT), the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). Taking a positivist approach, the thesis analyses the conditions for complicity to ensue, examines certain specific obligations which require States to refrain from assistance before or during PROEF PS Joelle Trampert.job_08/28/2024_117A 234 the commission of the principal violation, and explores how international human rights treaties can apply when States assist in the commission of serious human rights violations, including those committed abroad. Chapter 2 explains the nature and scope of the general complicity rule, which is laid down in Article 16 of the International Law Commission (ILC)’s Articles on Responsibility of States for Internationally Wrongful Acts (ASR). Complicity is a derivative form of responsibility, as responsibility for complicity in the principal violation is assigned if and when that violation occurred. The general complicity rule has certain features of a primary rule, but it is not an independent obligation. Rather, it presupposes that inherent in the negative obligation to refrain from committing X is the obligation to refrain from complicity in X too. The general complicity rule is functionally similar to the prohibition of refoulement, but responsibility for a breach of the latter can arise irrespective of and prior to the occurrence of the principal violation or the ultimate harm. Complicity is not a ground for attribution of conduct, also if the principal violation is committed by an NSA. Instead of being directly responsible as if it had directed and controlled the NSA’s conduct ex ante or acknowledged and adopted the conduct as its own ex post, the assisting State can be responsible for complicity in the wrongdoing of an NSA. Chapter 2 then discusses the four cumulative conditions for complicity to arise. First, many types of conduct can qualify as an act of assistance, although encouragement, attempts, and assistance after the fact do not. Despite the ICJ ruling otherwise in the Bosnian Genocide case, States can also assist in the commission of the principal violation by omission. Second, for complicity to arise, the act of assistance must have made a significant contribution to the commission of the principal violation, and third, the assisting State must have been aware of (i) its own conduct, (ii) the principal violation, and (iii) the link between the two. The assisting State need not share the principal actor’s intent, and the required intent to facilitate the commission of the principal violation can be inferred from the State’s knowledge of the violation followed by its decision to assist anyway. Knowledge of the principal violation cannot be presumed, except if the principal violation qualifies as a ‘serious’ breach of a jus cogens norm. Constructive knowledge does not suffice, but if a State is ‘wilfully blind’, knowledge can be assumed. Fourth, States can only be responsible for complicity in wrongdoing which they themselves are prohibited from committing. In the context of this study, this requirement will automatically be fulfilled. The second part of the Chapter examines the so-called aggravated responsibility regime, as laid down in Articles 40 and 41 ASR. This specific regime applies as a consequence of a serious breach of an obligation of jus cogens by a given (the principal) State. It imposes obligations on all third States, including an obligation not to render assistance in maintaining the situation created by that breach. Although this rule was not part of customary international law at the time of codification in 2001, it has probably attained this status since. Assistance rendered in breach of this obligation does not result in complicity in the principal violation per se, as the rule primarily applies to assistance after the fact. However, it also applies in relation to serious breaches of a continuing character, which makes it relevant in the context of this study. The conditions of the non-assistance rule are the same as those for PROEF PS Joelle Trampert.job_08/28/2024_117B 235 the general complicity rule, with the exception that the nexus relates to the maintenance of the situation or the continuation of the breach, and that the rule does not have a strict knowledge requirement, as all States are presumed to be on notice of the commission of a serious breach of a jus cogens norm. Chapter 3 discusses three substantive regimes, relating to different types of jus cogens norms: the Genocide Convention, the Torture Convention, and the ILC’s DACAH, which lay the groundwork for a ‘prevention convention’ on crimes against humanity. In the Bosnian Genocide case, the ICJ constructed a prohibition of complicity in genocide on the basis of a number of provisions in the Genocide Convention, but this rule already exists as part of the prohibition of committing genocide. This is also how the DACAH conceptualise the prohibition of committing crimes against humanity, although the ILC drafted the prohibition of complicity as an exclusively inter-State rule. Limiting complicity to inter-State constellations will result in a responsibility gap when crimes against humanity are committed by actors whose conduct cannot be attributed to a State. The Torture Convention can also be understood to include a complicity rule, although unlike the Genocide Convention, some of the obligations in this treaty depend on the State party’s ‘jurisdiction’. Jurisdiction designates a concept specific to IHRL, and is a precondition for most human rights treaties to apply. The prohibition of complicity under the Torture Convention might therefore only exist if the victim in question was within the jurisdiction of the assisting State. In cases where no such jurisdictional link exists, States are still obliged to criminalise, investigate, prosecute, and punish acts of torture, including complicity in torture, regardless of the victim’s physical location. This is so when State actors were involved in acts of torture, but also when NSAs, including corporate actors, facilitate ill-treatment by providing the principal actor with the means to act. Attention for corporate conduct and the role of the State in relation to corporations within its jurisdiction is on the rise, as evidenced by the provision in the DACAH that stipulates an obligation to establish the liability of legal persons. It follows from the Bosnian Genocide case that it is easier to base States’ responsibility in connection with the wrongdoing of another actor on their failure to take steps to prevent it, than on their complicity in the principal violation as such. But just because all instances of complicity qualify as failures to prevent, this does not make complicity redundant. The same goes for other, lesser, contributions: just because an act of assistance qualifies as a breach of an obligation of due diligence, this does not necessarily justify it being framed as a failure to intervene. As there was insufficient proof that the knowledge requirement for complicity was met, the ICJ qualified Serbia’s conduct as a failure to prevent the genocide, despite the totality of Serbia’s conduct having contributed to the commission of the crime. By recognising an obligation of non-assistance below the level of complicity, the ICJ could have expressed in clearer terms what Serbia was precisely responsible for. This matters for society as well as for the victims, as a judicial decision can function as a public record. The legal labels and terminology are also important for the development of the norms, and the conditions for complicity will remain unclear if disputed conduct is framed as a failure to prevent alone. Positive obligations are central in the DACAH, and although they may be more onerous, they may actually be preferable for PROEF PS Joelle Trampert.job_08/28/2024_118A 236 States over negative obligations. But obligations of restraint should not be overlooked. An example of such a negative obligation, below the level of complicity and before complicity is part of the equation, is the prohibition of refoulement, which is codified in the Torture Convention and included the DACAH. Another example of a rule prohibiting contributions below the level of complicity can be identified in Article 1 common to the 1949 Geneva Conventions (CA1), which stipulates that all States, including and perhaps especially States not party to the armed conflict, must ensure respect for IHL. Chapter 4 discusses the prohibition of assistance that is part of this overarching obligation, as well as the transfer prohibitions in the ATT, which can be regarded as further crystallisations of this rule. The overarching obligation to ensure respect for IHL has a so-called external dimension, which includes negative as well as positive obligations: third States must refrain from encouraging and assisting violations of IHL and must make their best efforts to suppress current and prevent further violations. In the context of the study, the prohibition of assistance is the most relevant, and in comparison to the positive obligations of third (or assisting) States, it is much less controversial. The conditions of the prohibition of assistance implicit in CA1 and the general complicity rule are rather alike, but the difference and the added value of the former is that when a State assists a party to the conflict despite the expectation that the assistance would be used to violate IHL, this conduct will always be in breach of CA1, even though it may not necessarily amount to complicity in the principal violation itself. Although it has received little attention in the doctrine, CA1 not only covers State conduct in relation to a party to the conflict, but can also regulate State conduct in relation to NSAs in its jurisdiction which are not a party to the conflict themselves, but which cooperate with an actor that is. The ATT, which has been in force for almost a decade now, is an important addition to the legal framework applicable to States which, whether or not they intend to, knowingly take the risk of contributing to the commission of international crimes or serious violations of IHL or IHRL abroad. Similar to the prohibition of refoulement, States can be responsible for breaching either Article 6 or Article 7 ATT prior to and irrespective of the occurrence of the principal violation. If and when the principal violation does occur, the transferring State may have been responsible for complicity in that violation too, but this is a separate legal enquiry. Article 6(3) ATT bans transfers if the State had knowledge at the time of authorisation that the arms or other items within the scope of the ATT would be used in the commission of international crimes. While this prohibition is absolute, the knowledge standard is high, and is temporally limited to the moment of the authorisation. When an export is not banned under Article 6 ATT, exporting States are required to conduct a risk assessment prior to any export authorisation. However, Article 7 ATT seemingly permits the risk of a violation to be weighed against (other) peace and security interests, and the export is only prohibited if the risk of a violation is ‘overriding’. This is a high standard, and arguably higher than the one in the EU Common Position. Article 7(7) ATT encourages States to reassess export authorisations in light of new relevant information, but does not explicitly oblige them to do so, or to halt exports which have already been approved. Having said that, with respect to the Netherlands’ decision to continue the export of items PROEF PS Joelle Trampert.job_08/28/2024_118B 237 within the scope of the ATT to Israel after 7 October 2023, the court of appeal of The Hague in the Netherlands has interpreted Article 7 ATT to require a reassessment of the risk too. Chapter 5 is the last substantive chapter, and focuses on two IHRL treaty regimes: the ECHR and the ICCPR. As the applicability of these treaties depends on the victim of the principal violation being within the State party’s jurisdiction, a large part of the chapter is devoted to different models for extraterritorial jurisdiction. The ECtHR has a more conservative approach to extraterritoriality than the Human Rights Committee (HRC), the UN treaty body which monitors State parties’ implementation of the ICCPR. To date, the ECtHR has accepted three bases for extraterritorial jurisdiction, namely the spatial model (effective control over territory where the victim is located), the personal model (authority and control over the body of the victim), and, more recently, the model which renders applicable procedural obligations when there is a jurisdictional link between the victim and the State on the basis of ‘special features’. On the basis of this approach, States may be obliged to investigate a death which occurred outside their jurisdiction (Hanan v Germany) or to ensure that the decision-making process regarding a repatriation request is surrounded by appropriate safeguards against arbitrariness (H.F. and Others v France). This approach can be expanded to the procedural obligations under other rights too. In 2018, the HRC explicitly endorsed the functional model of jurisdiction in relation to Article 6 ICCPR: when a State’s military or other activities have a direct and reasonably foreseeable impact on an individual’s enjoyment of the right to life, that individual is within the State party’s ICCPR-jurisdiction. Other human rights bodies and courts have also adopted functional models, but despite having had the opportunity to engage with it, the ECtHR has not (yet) done so. The ECtHR does have important jurisprudence on State responsibility for complicity; not only on the involvement of Contracting States in the US’s extraordinary rendition programme, but also on Contracting States’ responsibility in connection with abuses carried out by NSAs within their territory. States can incur responsibility for failing to protect the victim from ‘private’ acts of violence, but where a State’s role was more overt, it may be responsible for ‘acquiescing or conniving’ in the abuses too. This formula does not designate a (negative) duty inherent in certain rights, but gives expression to a degree of involvement in between a mere failure to protect or prevent and direct responsibility for the conduct as such. Acquiescence and connivance does not equate with complicity proper in each and every case, but it does always designates a degree of involvement that is closer to complicity than a failure to intervene. The ECtHR has developed its own approach to complicity, which started with the case of Mr El-Masri against North Macedonia, and has been expanded to other cases. The ECtHR has sometimes cited the general complicity rule as laid down in the ASR, but has never directly applied it. It has its own regime-specific approach, which deviates from the general rule mainly on the aspect of the required standard of knowledge. Under the ECHR, States can incur responsibility for complicity in human rights violations committed by States or NSAs when the authorities knew or ought to have known of the principal violation. Another relevant point is that the ECtHR does not need to rule on the PROEF PS Joelle Trampert.job_08/28/2024_119A 238 responsibility of the principal actor, which may be a procedural hurdle in regular inter-State complicity scenarios. The HRC has not developed its own regime-specific approach to complicity, but has asserted – immediately following its statement on the functional model for jurisdiction in its General Comment on the right to life – that States have obligations under international law not to assist activities undertaken by States and NSAs which violate the right to life. Thus, it can be inferred that the obligation of non-assistance can have extraterritorial effect, that it is an inherent part of the right to life, and that it includes violations by NSAs too. As is common in IHRL, constructive knowledge may be sufficient for complicity to ensue, but as there is little output concerning responsibility for complicity proper, this cannot be said with certainty. Another interesting part of the same General Comment concerns the obligations of States in relation to corporate actors. On the basis of an even broader functional approach to jurisdiction, the HRC has found that States must ensure that all activities taking place within their territory (or other places within their jurisdiction) which have a direct and reasonably foreseeable impact on the right to life of individuals abroad, including activities of corporate actors, are consistent with the right to life. Simply put, States must apparently ensure that companies within their jurisdiction do not violate the right to life of individuals abroad. This is a major development in IHRL, as this makes the (mis)conduct of a State’s businesses the business of that ‘home State’ under the ICCPR. The ECtHR has not recognised a similar obligation under the ECHR, and given its position on extraterritoriality, it is unlikely to in the near future. Chapter 5 addresses the question how the ECHR and the ICCPR could apply when a State party is complicit in or otherwise contributes to the commission of serious human rights violations abroad, i.e., where the victim is located outside the State’s territorial jurisdiction. Three scenarios have been selected, with varying degrees of remoteness: a case concerning Belgium’s alleged complicity in acts of torture committed by US agents in Guantánamo Bay (declared inadmissible by the Committee against Torture after it was rejected by the ECtHR); a case concerning Italy’s reported involvement in Libya’s pull-back operations and other violations in the Mediterranean Sea (currently pending before the ECtHR); and a hypothetical case concerning a State’s decision to authorise the transfer of arms to another State. Under the ECHR, the options are limited, although a broader understanding of the personal model offers possibilities. The third model also allows jurisdiction to be triggered in relation to a specific procedural obligation, which could require States to investigate ex post, and perhaps also to have a proper decision-making (or risk assessment) procedure ex ante. Under the ICCPR, assigning responsibility for complicity or other contributions in an extraterritorial context is easier, as the ICCPR applies once the State’s conduct has a direct and a reasonably foreseeable impact on the rights of individuals abroad. The ICCPR can apply to complicity in torture in Guantánamo Bay and involvement in pull-back operations at sea. Even an arms trade case, which is the hardest to capture by IHRL, could fall within the scope, especially where the principal violation has occurred. For example, if a State’s decision to authorise or otherwise allow an export of arms to a State where the arms are used to commit PROEF PS Joelle Trampert.job_08/28/2024_119B 239 or facilitate a serious violation of IHRL, then that decision might first trigger a jurisdictional link, and then entail a State’s responsibility under the ICCPR ex post. Chapter 6 concludes. It presents the rules discussed in four different categorise, namely complicity rules proper; rules prohibiting contributions below the level of complicity; rules prohibiting conduct in relation to a risk; and rules requiring States to regulate ex ante or investigate ex post. This categorisation does not purport to be absolute or exhaustive, but aims to enhance our understanding of when lawful acts of assistance become unlawful and what this means for assisting States’ responsibility. A central claim in the study is that a State’s responsibility should reflect the degree of its involvement in the principal violation. Just because many, if not all forms of assistance (by which I mean complicity and other contributions) qualify as breaches of positive obligations of due diligence, this does not justify States bearing responsibility for failing to prevent or supress the principal violation alone. The Conclusion reiterates that responsibility for involvement in the commission of serious violations of IHRL abroad can also be assigned under the ECHR and the ICCPR. This is important, as these treaties can be invoked by victims who have suffered grave and often irreparable harm. Staatsaansprakelijkheid voor Medeplichtigheid en Andere Bijdragen aan Internationale Misdrijven en Ernstige Mensenrechtenschendingen Van de genocide in Srebrenica in 1995 tot de ontvoering, ‘verscherpte ondervraging’ en geheime detentie van vermeende terroristen na 9/11, de daders van deze misdrijven handelden niet alleen. Het leger van de Republika Srpska ontving politieke, militaire en financiële steun van het huidige Servië, en het Internationaal Gerechtshof (IGH) oordeelde in 2007 dat de genocide, althans gedeeltelijk, met die steun was gepleegd. De Central Intelligence Agency van de Amerikaanse regering folterde en hield mensen vast op Europees grondgebied, en bracht de ‘high value detainees’ over van Europese luchthavens naar detentiecentra in andere landen, waaronder de basis in Guantánamo Bay. Het Europees Hof voor de Rechten van de Mens (EHRM) heeft in een aantal arresten geoordeeld dat bepaalde Europese Staten het extraordinary rendition programma hadden gefaciliteerd door de voorwaarden te scheppen waardoor het kon plaatsvinden en door geen enkele poging te doen om het te voorkomen. Servië werd uiteindelijk niet aansprakelijk gehouden voor medeplichtigheid aan de genocide, maar voor het niet voorkomen ervan. Noord-Macedonië, Polen, Italië, Roemenië en Litouwen zijn wel aansprakelijk gehouden voor medeplichtigheid aan folteringen en willekeurige detenties, maar niet op basis van de algemene medeplichtigheidsregel. De vraag die centraal staat in dit onderzoek is hoe het internationaal recht de aansprakelijkheid van Staten kan regelen voor medeplichtigheid en andere bijdragen aan internationale misdrijven of ernstige mensenrechtenschendingen begaan door andere actoren, in het bijzonder extraterritoriaal. Hoofdstuk 1 legt de belangrijkste elementen van de onderzoeksvraag en de gebezigde terminologie uit. Medeplichtigheid is geen vakterm in het internationaal recht, maar wordt vaak gehanteerd in de doctrine PROEF PS Joelle Trampert.job_08/28/2024_120A 240 en duidt een specifiek concept en een algemene regel in het recht inzake staatsaansprakelijkheid aan. Andere bijdragen zijn ook meegenomen, omdat niet elke bijdrage ook echt het niveau van medeplichtigheid bereikt. Het onderzoek was gericht op bijdragen aan drie ‘internationale misdrijven’ en drie ‘ernstige mensenrechtenschendingen’, namelijk genocide, oorlogsmisdrijven en misdrijven tegen de menselijkheid, en ontneming van het recht op leven, foltering en mishandeling, en vrijheidsberoving. Aangezien deze (hoofd)schendingen door een Staat of een niet-statelijke actor (NSA) gepleegd kunnen worden, zijn ook Staat-NSA constellaties meegenomen. Het extraterritoriale aspect houdt in dat het slachtoffer zich niet fysiek in een gebied bevindt dat onder controle van de assisterende Staat is, wat doorgaans niet uitmaakt, maar doorslaggevend kan zijn voor het internationaal recht van de rechten van de mens (IHRL). Het proefschrift is gebaseerd op een doctrinaire studie van het toepasselijke recht. Naast het recht inzake staatsaansprakelijkheid, zijn er relevante regels geïdentificeerd in specifieke (verdrags)regimes, namelijk het Genocideverdrag, het Folterverdrag, de Ontwerpartikelen inzake Misdrijven tegen de Menselijkheid (DACAH), de Geneefse Conventies van 1949, het Wapenhandelsverdrag (ATT), het Europees Verdrag voor de Rechten van de Mens (EVRM) en het Internationaal Verdrag inzake Burgerrechten en Politieke Rechten (IVBPR). Dit proefschrift analyseert vanuit een positivistische benadering de voorwaarden voor medeplichtigheid, bestudeert bepaalde specifieke verplichtingen op grond waarvan Staten zich moeten onthouden van het verlenen van hulp of bijstand voor of terwijl de hoofdschending wordt gepleegd, en bekijkt hoe internationale mensenrechtenverdragen van toepassing kunnen zijn wanneer Staten hulp verlenen bij het plegen van ernstige mensenrechtenschendingen, ook bij schendingen die in het buitenland worden gepleegd. De algemene medeplichtigheidsregel is neergelegd in Artikel 16 van de Artikelen inzake Staatsaansprakelijkheid (ASR) van de International Law Commission (ILC). Het eerste deel van Hoofdstuk 2 legt de aard en reikwijdte van deze regel uit. Medeplichtigheid is een afgeleide vorm van aansprakelijkheid, omdat aansprakelijkheid voor medeplichtigheid aan een schending alleen intreedt als die schending ook heeft plaatsgevonden. De algemene medeplichtigheidsregel heeft bepaalde kenmerken van een zogeheten primaire regel, maar is geen zelfstandige verplichting. Het veronderstelt eerder dat inherent aan de negatieve verplichting om zich te onthouden van het plegen van X, er ook een verplichting is om zich te onthouden van medeplichtigheid aan X. De algemene medeplichtigheidsregel is ‘functioneel vergelijkbaar’ met het verbod op refoulement, met de kanttekening dat aansprakelijkheid voor een schending van dit verbod ongeacht en voorafgaand aan de hoofdschending of de uiteindelijke schade kan intreden. Medeplichtigheid is geen grond voor toerekening van een gedraging, ook niet als de hoofdschending door een NSA is gepleegd. In plaats van direct aansprakelijk te zijn alsof de Staat het gedrag van de NSA vooraf had aangestuurd en gecontroleerd, of het gedrag achteraf als zijn eigen gedrag had erkend en aanvaard, kan de assisterende Staat aansprakelijk zijn voor medeplichtigheid aan het wangedrag van een NSA. Hoofdstuk 2 bespreekt vervolgens de vier cumulatieve voorwaarden voor aansprakelijkheid voor medeplichtigheid. Ten eerste kunnen veel gedragingen als ‘hulp en bijstand’ gelden, hoewel aanmoediging, pogingen en hulp achteraf PROEF PS Joelle Trampert.job_08/28/2024_120B 241 hier wel buiten vallen. Ondanks de uitspraak van het IGH in de Bosnische Genocide zaak, kunnen Staten ook door een nalaten medeplichtig zijn aan de hoofdschending. Ten tweede moet, wil er sprake zijn van medeplichtigheid, de hulp een significante bijdrage hebben geleverd aan het begaan van de hoofdschending. Ten derde moet de assisterende Staat wetenschap hebben van (i) zijn eigen handelen, (ii) de hoofdschending, en (iii) het verband tussen beide. De assisterende Staat hoeft de opzet van de ‘dader’ niet te delen, en de vereiste opzet om het plegen van de hoofdschending te vergemakkelijken kan worden afgeleid uit de kennis van de Staat over de schending, gevolgd door het besluit om toch hulp te verlenen. Kennis van de hoofdschending kan niet worden verondersteld, behalve als de hoofdschending kan worden aangemerkt als een ‘ernstige’ schending van een jus cogens norm. Constructive knowledge (als je het niet wist, had je het moeten weten) is ook niet voldoende, maar als een Staat ‘ziende blind’ is (het kan niet anders zijn dan dat je het wist), kan kennis wel worden verondersteld. Ten vierde kunnen Staten alleen aansprakelijk zijn voor medeplichtigheid aan schendingen die zij zelf niet mogen plegen. In de context van dit onderzoek zal automatisch aan deze eis zijn voldaan. In het tweede deel van het hoofdstuk wordt ingegaan op het zogenoemde verzwaarde aansprakelijkheidsregime, zoals neergelegd in Artikelen 40 en 41 ASR. Dit specifieke regime is van toepassing als gevolg van een ernstige schending van een jus cogens verplichting door een bepaalde (de plegende) Staat. Het legt verplichtingen op aan alle andere Staten, waaronder een verplichting om geen hulp te verlenen bij het in stand houden van de situatie die door die schending is ontstaan. Hoewel deze regel ten tijde van de codificatie in 2001 geen deel uitmaakte van het internationaal gewoonterecht, heeft hij deze status sindsdien waarschijnlijk wel verworven. Het verlenen van bijstand in strijd met deze verplichting leidt niet per se tot medeplichtigheid aan de hoofdschending, aangezien de regel voornamelijk van toepassing is op hulp achteraf. De regel geldt echter ook voor ernstige schendingen met een voortdurend karakter, wat het relevant maakt in de context van dit onderzoek. De voorwaarden van de non-assistentie regel zijn dezelfde als die voor de algemene medeplichtigheidsregel, met de uitzondering dat het causale verband betrekking heeft op het in stand houden van de situatie of het voortduren van de hoofdschending, en dat er geen strikt kennisvereiste is, aangezien alle Staten worden geacht op de hoogte te zijn van een ernstige schending van een jus cogens norm. Hoofdstuk 3 bespreekt drie inhoudelijke regimes die betrekking hebben op verschillende soorten jus cogens normen: het Genocideverdrag, het Folterverdrag, en de DACAH van de ILC, die de basis leggen voor een ‘preventieconventie’ voor misdrijven tegen de menselijkheid. Het IGH heeft in de Bosnische Genocide zaak op basis van een aantal bepalingen uit het Genocideverdrag een verbod op medeplichtigheid aan genocide geconstrueerd, maar deze regel bestaat al als onderdeel van het verbod op het plegen van genocide zelf. Dit is ook de manier waarop de DACAH het verbod op het plegen van misdrijven tegen de menselijkheid conceptualiseren. Wel heeft de ILC het verbod op medeplichtigheid opgesteld als een regel die uitsluitend tussen Staten geldt. Het beperken van medeplichtigheid tot interstatelijke constellaties zal tot een aansprakelijkheidsleemte leiden wanneer misdrijven tegen de menselijkheid worden gepleegd door actoren wier gedrag niet aan een Staat kan worden toegerekend. PROEF PS Joelle Trampert.job_08/28/2024_121A 242 Het Folterverdrag kan ook zo worden geïnterpreteerd dat het een medeplichtigheidsregel bevat, maar in tegenstelling tot het Genocideverdrag hangen sommige verplichtingen in dit verdrag af van de ‘rechtsmacht’ van de verdragspartij. Rechtsmacht is een concept dat specifiek is voor IHRL, en is een voorwaarde voor de toepassing van de meeste mensenrechtenverdragen. Het verbod op medeplichtigheid in het Folterverdrag zou daarom alleen kunnen bestaan als het slachtoffer in kwestie zich binnen de rechtsmacht van de assisterende Staat bevond. In gevallen waarin dat niet zo is, zijn Staten nog steeds verplicht om foltering, inclusief medeplichtigheid aan foltering, strafbaar te stellen, te onderzoeken, te vervolgen en te bestraffen, ongeacht de fysieke locatie van het slachtoffer. Dit is het geval wanneer overheidsactoren betrokken waren bij folteringen, maar ook wanneer NSAs, waaronder actoren uit het bedrijfsleven, mishandelingen faciliteren door de ‘dader’ de middelen te verschaffen om te handelen. De aandacht voor de rol van bedrijven én van de Staat ten aanzien van bedrijven binnen zijn rechtsmacht neemt toe, zoals blijkt uit de bepaling in de DACAH die een verplichting oplegt om de aansprakelijkheid van rechtspersonen vast te stellen. Uit de Bosnische Genocide zaak volgt dat het gemakkelijker is om de aansprakelijkheid van Staten in verband met het wangedrag van een andere actor te baseren op hun nalatigheid om stappen te ondernemen om dat wangedrag te voorkomen, dan op hun medeplichtigheid aan de hoofdschending als zodanig. Maar het feit dat alle gevallen van medeplichtigheid kunnen worden aangemerkt als nalatigheid om te voorkomen, maakt medeplichtigheid niet overbodig. Hetzelfde geldt voor andere, mindere, bijdragen: het feit dat hulp of bijstand kwalificeert als een schending van een zorgvuldigheidsplicht (due diligence verplichting), rechtvaardigt niet noodzakelijkerwijs dat dat wordt aangemerkt als een verzuim om in te grijpen. Omdat er onvoldoende bewijs was dat aan het kennisvereiste voor medeplichtigheid was voldaan, kwalificeerde het IGH het gedrag van Servië als een nalaten om de genocide te voorkomen, ondanks dat het geheel van Servië’s gedrag had bijgedragen aan het plegen van het misdrijf. Door een non-assistentie verplichting onder het niveau van medeplichtigheid te erkennen, had het IGH in duidelijkere bewoording kunnen uitdrukken waar Servië precies aansprakelijk voor was. Dit is zowel van belang voor de samenleving als voor de slachtoffers, aangezien een rechterlijke uitspraak kan fungeren als openbare documentatie. Daarnaast zijn de juridische labels en terminologie ook belangrijk voor de ontwikkeling van de normen, en de voorwaarden voor medeplichtigheid zullen onduidelijk blijven als de bijdrage in kwestie alleen wordt beschouwd als een falen om te voorkomen. Positieve verplichtingen staan centraal in de DACAH, en hoewel ze misschien meer vragen van Staten, zullen ze misschien juist de voorkeur genieten. Maar verboden (negatieve verplichtingen) mogen niet over het hoofd worden gezien. Een voorbeeld van een dergelijke negatieve verplichting, onder het niveau van medeplichtigheid en voordat medeplichtigheid aan de orde is, is het verbod op refoulement, dat is neergelegd in het Folterverdrag en in de DACAH. Een ander voorbeeld van een regel die bijdragen onder het niveau van medeplichtigheid verbiedt, is te vinden in gemeenschappelijk Artikel 1 van de Geneefse Conventies van 1949 (CA1), waarin wordt bepaald dat alle Staten, inclusief en misschien vooral Staten die geen partij zijn bij het PROEF PS Joelle Trampert.job_08/28/2024_121B 243 gewapend conflict, het humanitair oorlogsrecht (HOR) moeten doen eerbiedigen. Hoofdstuk 4 bespreekt het assistentieverbod dat deel uitmaakt van deze overkoepelende verplichting, evenals de zogeheten overdrachtsverboden in het ATT, die beschouwd kunnen worden als een verdere concretisering van deze regel. De overkoepelende verplichting om de eerbiediging van het HOR te waarborgen heeft een zogenaamde externe dimensie, die zowel negatieve als positieve verplichtingen omvat: andere Staten moeten zich onthouden van het aanmoedigen en ondersteunen van schendingen van het HOR en moeten hun best doen om bestaande schendingen de kop in te drukken en verdere schendingen te voorkomen. In de context van dit onderzoek is het assistentieverbod het meest relevant, en is het in vergelijking met de positieve verplichtingen van derde (of assisterende) Staten veel minder controversieel. De voorwaarden van het impliciete assistentieverbod in CA1 en de algemene medeplichtigheidsregel lijken nogal op elkaar, maar het verschil en de toegevoegde waarde van de eerstgenoemde regel is dat wanneer een Staat een partij bij het conflict bijstand verleent ondanks de verwachting dat de hulp gebruikt zou worden om het HOR te schenden, dit altijd in strijd zal zijn met CA1, ook al hoeft dit niet noodzakelijkerwijs tot medeplichtigheid aan de hoofdschending zelf te leiden. Voorts is er in de doctrine weinig aandacht besteed aan het idee dat CA1 niet alleen betrekking heeft op het gedrag van Staten ten opzichte van een partij bij het conflict, maar dat het ook het handelen van Staten kan reguleren ten aanzien van NSAs binnen zijn rechtsmacht die zelf geen partij zijn bij het conflict, maar die samenwerken met een actor die dat wel is. Het ATT, dat nu bijna tien jaar van kracht is, vormt een belangrijke aanvulling op het juridisch kader dat van toepassing is op Staten die, wel of niet opzettelijk, bewust het risico nemen bij te dragen aan internationale misdrijven of ernstige schendingen van het HOR of IHRL in het buitenland. Net als bij het verbod op refoulement kunnen staten aansprakelijk zijn voor het schenden van Artikel 6 of Artikel 7 ATT voorafgaand aan en ongeacht of de hoofdschending uiteindelijk plaatsvindt. Als die schending zich toch voordoet, kan de overdragende Staat tevens aansprakelijk zijn voor medeplichtigheid aan die schending, maar dit is een afzonderlijke rechtsvraag. Artikel 6 lid 3 ATT verbiedt overdrachten indien de Staat op het moment van het verlenen van toestemming wist dat de wapens of andere goederen die onder het ATT vallen gebruikt zouden worden bij het begaan van internationale misdrijven. Hoewel dit verbod absoluut is, is het kennisvereiste strikt (als in: het wordt niet snel aangenomen) en is het verbod beperkt tot het tijdstip van de toestemming. Indien de uitvoer niet verboden is op grond van Artikel 6 ATT, zijn uitvoerende Staten verplicht om een risicobeoordeling uit te voeren voorafgaand aan elke exportvergunning. Artikel 7 ATT lijkt echter toe te staan dat het risico op een schending wordt afgewogen tegen (andere) vredes- en veiligheidsbelangen, en de uitvoer is alleen verboden als het risico op een schending ‘doorslaggevend’ is. Dit is een hoge standaard, en misschien wel hoger dan die in het EU Gemeenschappelijk Standpunt. Artikel 7 lid 7 ATT moedigt Staten aan om exportvergunningen opnieuw te beoordelen in het licht van nieuwe relevante informatie, maar verplicht hen er niet expliciet toe, of om een reeds goedgekeurde uitvoer stop te zetten. Dit gezegd hebbende, wat betreft het besluit van Nederland om de uitvoer van goederen die binnen de reikwijdte PROEF PS Joelle Trampert.job_08/28/2024_122A 244 van het ATT vallen naar Israël na 7 oktober 2023 voort te zetten, heeft het Gerechtshof Den Haag Artikel 7 ATT zodanig geïnterpreteerd dat het ook een verplichting tot een herbeoordeling van het risico bevat. Hoofdstuk 5 is het laatste inhoudelijke hoofdstuk en richt zich op twee mensenrechtenverdragen: het EVRM en het IVBPR. Omdat de toepassing van deze verdragen afhangt van de vraag of het slachtoffer van de hoofdschending binnen de rechtsmacht van de verdragspartij is, is een groot deel van het hoofdstuk gewijd aan verschillende modellen voor extraterritoriale rechtsmacht. Het EHRM hanteert een conservatievere benadering van extraterritorialiteit dan het Mensenrechtencomité (HRC), het VN-verdragsorgaan dat toeziet op de implementatie van het IVBPR door de verdragspartijen. Tot nu toe heeft het EHRM drie grondslagen voor extraterritoriale rechtsmacht aanvaard, namelijk het ruimtelijke model (effectieve controle over het gebied waar het slachtoffer zich bevindt), het persoonlijke model (gezag en controle over het lichaam van het slachtoffer) en, meer recent, het model waarbij procedurele verplichtingen van toepassing zijn wanneer er een jurisdictionele band bestaat tussen het slachtoffer en de Staat op basis van ‘bijzondere kenmerken’. Op grond van deze benadering kunnen Staten verplicht zijn om onderzoek te doen naar een sterfgeval buiten hun rechtsmacht (Hanan t Duitsland) of om te zorgen dat het besluitvormingsproces met betrekking tot een repatriëringsverzoek wordt omgeven door passende waarborgen tegen willekeur (H.F. e.a. t Frankrijk). Deze benadering kan ook worden uitgebreid naar procedurele verplichtingen onder andere rechten. In 2018 onderschreef het HRC uitdrukkelijk het zogeheten functionele model met betrekking tot Artikel 6 IVBPR: wanneer de militaire of andere activiteiten van een Staat een directe en redelijkerwijs voorzienbare impact hebben op het genot van het recht op leven van een individu, dan valt dat individu binnen de rechtsmacht van die Staat. Andere mensenrechtenlichamen en -hoven hebben ook functionele benaderingen aangenomen, maar ondanks de gelegenheid om hierover een positie in te nemen, heeft het EHRM dat (nog) niet gedaan. Het EHRM heeft wel belangrijke arresten gewezen over Staatsaansprakelijkheid voor medeplichtigheid; niet alleen over de betrokkenheid van bepaalde Staten bij het extraordinary rendition programma van de VS, maar ook over aansprakelijkheid in verband met misdrijven die gepleegd zijn door NSA’s op hun grondgebied. Staten kunnen aansprakelijk zijn als ze er niet in slagen het slachtoffer te beschermen tegen ‘particuliere’ geweldsdelicten, maar waar de rol van de Staat directer was, kan hij ook verantwoordelijk zijn voor acquiescence and connivance bij die misdrijven. Deze formule duidt niet op een (negatieve) verplichting die inherent is aan bepaalde rechten, maar geeft uitdrukking aan een mate van betrokkenheid tussen het louter nalaten om te beschermen of te voorkomen en directe aansprakelijkheid voor de gedraging als zodanig. Acquiescence and connivance staat niet in alle gevallen gelijk aan medeplichtigheid, maar duidt wel altijd een mate van betrokkenheid aan die dichter bij medeplichtigheid ligt dan bij het falen om in te grijpen. Het EHRM heeft zijn eigen aanpak van medeplichtigheid ontwikkeld, die begon met de zaak van El-Masri t Macedonië en is uitgebreid naar andere zaken. Het EHRM heeft soms de algemene medeplichtigheidsregel zoals neergelegd in de ASR PROEF PS Joelle Trampert.job_08/28/2024_122B 245 aangehaald, maar nooit rechtstreeks toegepast. Het heeft een eigen, regime-specifieke aanpak, die vooral wat betreft het kennisvereiste afwijkt van de algemene regel. Op grond van het EVRM kunnen Staten aansprakelijk worden gesteld voor medeplichtigheid aan mensenrechtenschendingen gepleegd door andere Staten of NSA’s wanneer de autoriteiten van de assisterende Staat van de hoofdschending wisten of hadden moeten weten. Een ander relevant punt is dat het EHRM geen uitspraak hoeft te doen over de aansprakelijkheid van de ‘dader’, wat een procedurele hindernis kan zijn bij reguliere, interstatelijke medeplichtigheidsscenario’s. Het HRC heeft geen eigen, regime-specifieke aanpak ontwikkeld, maar heeft – onmiddelijk na de opmerking over het functionele model voor rechtsmacht in het General Comment over het recht op leven – gesteld dat Staten onder het internationaal recht verplicht zijn om geen steun te verlenen aan activiteiten van Staten en NSA’s die het recht op leven schenden. Hieruit kan worden afgeleid dat de verplichting om geen hulp te verlenen extraterritoriale werking kan hebben, dat deze een inherent onderdeel is van het recht op leven en dat deze ook schendingen door NSA’s omvat. Zoals gebruikelijk in IHRL, kan het hebben moeten weten voldoende zijn voor medeplichtigheid, maar omdat er weinig uitspraken zijn met betrekking tot aansprakelijkheid voor medeplichtigheid, kan dit niet met zekerheid worden gezegd. Een ander interessant onderdeel van hetzelfde General Comment betreft de verplichtingen van Staten ten aanzien van bedrijven. Op basis van een nog bredere functionele benadering van rechtsmacht heeft het HRC vastgesteld dat Staten ervoor moeten zorgen dat alle activiteiten die plaatsvinden op hun grondgebied (of andere gebieden binnen hun rechtsmacht) en die een directe en redelijkerwijs voorzienbare impact hebben op het recht op leven van individuen in het buitenland, met inbegrip van activiteiten van bedrijven, in overeenstemming zijn met het recht op leven. Simpel gezegd moeten Staten er kennelijk voor zorgen dat bedrijven binnen hun rechtsmacht het recht op leven van individuen in het buitenland niet schenden. Dit is een belangrijke ontwikkeling in IHRL, omdat dit het (wan)gedrag van bedrijven binnen een Staat tot de aangelegenheid van die ‘thuisstaat’ maakt onder het IVBPR. Het EHRM heeft een soortgelijke verplichting onder het EVRM niet erkend, en gezien het standpunt over extraterritorialiteit is het onwaarschijnlijk dat dit in de nabije toekomst anders zal zijn. Hoofdstuk 5 gaat in op de vraag hoe het EVRM en het IVBPR van toepassing zouden kunnen zijn wanneer een verdragspartij medeplichtig is of anderszins bijdraagt aan het plegen van ernstige mensenrechtenschendingen in het buitenland, dat wil zeggen wanneer het slachtoffer zich buiten de territoriale rechtsmacht van die Staat bevindt. Er zijn drie scenario’s geselecteerd, met verschillende maten van afstand: een zaak betreffende de vermeende medeplichtigheid van België aan foltering gepleegd door Amerikaanse agenten in Guantánamo Bay (niet-ontvankelijk verklaard door het Comité tegen Foltering nadat het was verworpen door het EHRM); een zaak betreffende de gerapporteerde betrokkenheid van Italië bij de pull-back operaties en andere schendingen gepleegd door Libië in de Middellandse Zee (momenteel aanhangig bij het EHRM); en een hypothetische zaak betreffende het besluit van een Staat om de overdracht van wapens naar een andere Staat toe te staan. Op grond van het PROEF PS Joelle Trampert.job_08/28/2024_123A 246 EVRM zijn de mogelijkheden beperkt, al biedt een bredere opvatting van het persoonlijke model wel mogelijkheden. Het derde model maakt het ook mogelijk om rechtsmacht vast te stellen met betrekking tot een specifieke procedurele verplichting, die Staten ertoe zou kunnen verplichten om achteraf onderzoek te doen, en wellicht ook om vooraf een gedegen besluitvormingsprocedure (of risicobeoordeling) te hebben. Op grond van het IVBPR is het gemakkelijker om aansprakelijkheid voor medeplichtigheid of andere bijdragen in een extraterritoriale context vast te stellen, aangezien het IVBPR van toepassing is zodra het gedrag van de Staat een directe en redelijkerwijs voorzienbare impact heeft op de rechten van individuen in het buitenland. Het IVBPR kan van toepassing zijn bij medeplichtigheid aan foltering in Guantánamo Bay en betrokkenheid bij pull-back operaties op zee. Zelfs een wapenhandelszaak, die het moeilijkst door IHRL te vatten is, zou binnen de reikwijdte kunnen vallen, vooral wanneer de hoofdschending reeds heeft plaatsgevonden. Als een Staat bijvoorbeeld besluit om de uitvoer van wapens goed te keuren of anderszins toe te staan naar een Staat waar de wapens worden gebruikt om een ernstige schending van IHRL te plegen of te bevorderen, dan kan dat besluit eerst een grondslag zijn voor rechtsmacht, en vervolgens voor de aansprakelijkheid van de Staat onder het IVBPR ex post. Hoofdstuk 6 besluit. Het presenteert de besproken regels in vier verschillende categorieën, namelijk de medeplichtigheidsregels; regels die bijdragen onder het niveau van medeplichtigheid verbieden; regels die gedrag in verband met een risico verbieden; en regels die Staten verplichten om vooraf regelgeving op te stellen en achteraf onderzoek in te stellen. Deze categorisering is niet absoluut of uitputtend, maar is bedoeld om het inzichtelijker te maken wanneer rechtmatige daden van hulpverlening onrechtmatig worden en wat dit betekent voor de aansprakelijkheid van Staten. Een centrale stelling in het onderzoek is dat de aansprakelijkheid van een Staat de mate van betrokkenheid bij de hoofdschending moet weerspiegelen. Het feit dat veel, zo niet alle, vormen van assistentie (waarmee ik medeplichtigheid en andere bijdragen bedoel) kunnen worden aangemerkt als schendingen van positieve verplichtingen van due diligence, rechtvaardigt niet dat Staten alleen aansprakelijk zijn voor het niet voorkomen of beëindigen van de hoofdschending. De Conclusie herhaalt dat aansprakelijkheid voor betrokkenheid bij het begaan van ernstige mensenrechtenschendingen in het buitenland ook kan worden vastgesteld op grond van het EVRM en het IVBPR. Dit is belangrijk, omdat deze verdragen kunnen worden ingeroepen door slachtoffers die ernstige en vaak onherstelbare schade hebben geleden. PROEF PS Joelle Trampert.job_08/28/2024_123B 247 ACKNOWLEDGEMENTS First and foremost, I must thank Göran – not just because this is conventional in the acknowledgements, but especially because I could not have wished for a better promotor, who always believed in me. Göran, I am extremely grateful for the opportunity to have worked with you for the past six years. I have learned a lot, and thanks to you, I enjoyed (nearly) all of it. Your unwavering optimism and trust motivated me to finish the PhD, to teach and supervise students, and to apply for certain roles. I’m not sure that I could have done any of this without you. Thank you. Second, I must thank Rosanne and Jill, my two copromotores. Rosanne, your attention to detail and your expertise and ideas have been invaluable since the start. Your critical comments and questions pushed me to rewrite the first full draft, and to submit a better manuscript in February 2024. You provide fantastic feedback, and your observations on my writing were always on point (e.g.: ‘after reading this, an average reader may feel like [they are] standing on quicksand’ or ‘[this part gives] apple/pear vibes’). You have helped me to improve in so many ways. Jill, your door was open for me from the beginning. During the pandemic, you helped me think through the scenarios that I wanted to cover in my thesis, assisted me with my own supervision tasks, and made me feel connected to the department by including me in your online course on open-source investigations into international crimes. Thank you for challenging me by providing extensive comments and introducing different perspectives, and for celebrating the successes with me (especially our borrel at De Groene Olifant). Third, I would like to thank Professor Yvonne Donders, Professor André Nollkaemper, Professor Helen Duffy, Professor Cedric Ryngaert, Dr Marieke de Hoon, and Dr Miles Jackson for accepting to be part of my Reading Committee. I am honoured that you have all taken the time to engage with my work. Marieke, even though you are incredibly busy, you frequently made time for a chat in the kitchenette to ask me how I was doing and to share what you were working on. Your drive and enthusiasm really inspire me. Miles, your work has significantly contributed to my project – I hope that I have done it justice. I am also grateful for your advice and suggestions as to what sections of the thesis I could develop into separate publications. A big thank you to my colleagues and friends of the Rethinking SLIC team: Marc, Nicky, Nina, and Tom. Nina, we started our PhD contracts together, and I enjoyed the many (!) hours that we spent chatting in our office. You’ve been a wonderful colleague, and an equally wonderful brunch-hoster. Thank you for all the parties and laughs, and for all your help and feedback, especially in the beginning. Nicky, I’m so glad that you joined our team. You’ve been one of my main cheerleaders, and no matter how busy you are, you always make time to proofread my work or mark another milestone with me. You are an absolute superstar, and I hope we will remain colleagues (I know we will remain friends). Marc, thank you for all the walks, talks, and drinks, especially during the lockdown. I always benefited from your input at our team meetings, and I’ll never forget our (unresolved) discussion on when certain PROEF PS Joelle Trampert.job_08/28/2024_124APROEF PS Joelle Trampert.job_08/28/2024_124B 249 Giacomo, thank you so much for bearing with me until the end. Thank you for supporting me with all my compitini, and for encouraging me to relax and to stop talking about work (and what you consider to be work-related topics). I am forever grateful for all the delicious pasta you have served me time and time again, and for everything else that you do. I could have written this thesis without you, but I am so glad that I didn’t have to! Special thanks to my immediate and extended family. Lara, it’s been great to spend time together in Luxembourg, Amsterdam, and even Taiwan, and thank you for always cheering me on (often with a glass of crémant). My other family in Luxembourg, your generosity and support during and especially before my PhD meant a lot. It’s always so nice to visit you and to eat, drink, and simply celebrate life together. Villmols merci! David, if I had 10% of your discipline, I would definitely have finished the PhD much faster (Lara will agree). I’m in awe of your energy and drive on so many levels, and even though I will never adopt your style, it continues to motivate me. Finally, mum and dad, I cannot thank you enough for your endless encouragement and support. You have taught me that perseverance is key – to go for it (whatever ‘it’ was) and never give up. I could not have managed this like I did without you. Amsterdam, 9 August 2024 PROEF PS Joelle Trampert.job_08/28/2024_125A PROEF PS Joelle Trampert.job_08/28/2024_125B 251 OVERVIEW OF SOURCES The bibliography is arranged in alphabetical order of author surname. Cambridge University Press and Oxford University Press are abbreviated to CUP and OUP respectively. Newspaper articles are digital, unless otherwise specified. Jurisprudence is arranged in alphabetical order of case name, and the overview of treaties and other documents is ordered chronologically and/or thematically. Bibliography Books Helmut Philipp Aust, Complicity and the Law of State Responsibility (CUP 2011) Antal Berkes, International Human Rights Law Beyond State Territorial Control (CUP 2021) Beatrice Bonafè, The Relationship Between State and Individual Responsibility for International Crimes (Martinus Nijhoff 2009) J Herman Burgers and Hans Danelius, The United Nations Convention against Torture – A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) Ian Cobain, Cruel Brittania, a Secret History of Torture (Portobello 2012) Daniel Costelloe, Legal Consequences of Peremptory Norms in International Law (CUP 2017) James Crawford, State Responsibility – The General Part (CUP 2013) Suzanne Egan, Extraordinary Rendition and Human Rights – Examining State Accountability and Complicity (Palgrave Pivot 2019) Melanie Fink, Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’ Under the ECHR and EU Public Liability Law (OUP 2018) Katharine Fortin, The Accountability of Armed Groups under Human Rights Law (OUP 2017) Nienke van der Have, The Prevention of Gross Human Rights Violations Under International Human Rights Law (Springer 2018) Emma Irving, Multi-Actor Human Rights Protection at the International Criminal Court (CUP 2020) Miles Jackson, Complicity in International Law (OUP 2015) Nina HB Jørgensen, The Responsibility of States for International Crimes (OUP 2000) Lisa-Marie Komp, Border Deaths at Sea under the Right to Life in the European Convention on Human Rights (Routledge 2023) Vladyslav Lanovoy, Complicity and its Limits in the Law of International Responsibility (Hart 2016) Laurence Lustgarten, Law and the Arms Trade – Weapons, Blood and Rules (Hart 2020) Richard Mackenzie-Gray Scott, State Responsibility for Non-State Actors – Past, Present and Prospects for the Future (Hart 2022) PROEF PS Joelle Trampert.job_08/28/2024_126A 252 Natasa Mavronicola, Torture, Inhumanity and Degradation under Article 3 of the ECHR – Absolute Rights and Absolute Wrongs (Hart 2021) Marko Milanovic, Extraterritorial Application of Human Rights Treaties – Law, Principles, and Policy (OUP 2011) Maria Monnheimer, Due Diligence Obligations in International Human Rights Law (CUP 2021) Alice Ollino, Due Diligence Obligations in International Law (CUP 2022) Magdalena Pacholska, Complicity and the Law of International Organizations – Responsibility for Human Rights and Humanitarian Law Violations in UN Peace Operations (Edward Elgar 2020) Federica Paddeu, Justification and Excuse in International Law – Concept and Theory of General Defences (CUP 2018) Lea Raible, Human Rights Unbound – a Theory of Extraterritoriality (OUP 2020) Cedric Ryngaert, Jurisdiction in International Law (OUP 2015, 2nd edition) Alessandra De Tomasso, Corporate Liability and International Criminal Law (Routledge 2023) Jennifer Trahan, Existing Legal Limits to Security Council Veto Power in the Face of Mass Atrocities (CUP 2020) Edited books Bård A Andreassen, Hans-Otto Sano, Siobhán McInerney-Lankford, Research Methods in Human Rights – A Handbook (Edgar Elgar 2017) Stuart Casey-Maslen, Andrew Clapham, Gilles Giacca, Sarah Parker, The Arms Trade Treaty: A Commentary (OUP 2016) Andrew Clapham, Paola Gaeta, Marco Sassòli, The 1949 Geneva Conventions: A Commentary (OUP 2015) James Crawford, Alain Pellet, Simon Olleson, Kate Parlett, The Law of International Responsibility (OUP 2010) Paola Gaeta, The UN Genocide Convention: A Commentary (OUP 2009) Mark Gibney, Gamze Erdem Türkelli, Markus Krajewski, Wouter Vandenhole, The Routledge Handbook on Extraterritorial Human Rights Obligations (Routledge 2022) Mark van Hoecke, Methodologies of Legal Research – Which Kind of Method for What Kind of Discipline? (Hart 2011) Heike Krieger, Anne Peters, Leonhard Kreuzer, Due Diligence in the International Legal Order (OUP 2020) Lee McConnell and Rhona Smith, Research Methods in Human Rights (Routledge 2018) André Nollkaemper and Ilias Plakokefalos, Principles of Shared Responsibility in International Law: An Appraisal of the State of Art (CUP 2014) – The Practice of Shared Responsibility in International Law (CUP 2017) Manfred Nowak, Moritz Birk, Giuliana Monina, The United Nations Convention Against Torture and its Optional Protocol: A Commentary (OUP 2019, 2nd edition) Clare da Silva and Brian Wood, The Arms Trade Treaty – Weapons and International Law (Intersentia 2021) Chapters in edited books PROEF PS Joelle Trampert.job_08/28/2024_126B 253 Marina Aksenova, ‘Arms Trade and Weapons Export Control’ in Mark Gibney, Gamze Erdem Türkelli, Markus Krajewski, Wouter Vandenhole (eds) The Routledge Handbook on Extraterritorial Human Rights Obligations (Routledge 2022) Margit Ammer and Andrea Schuechner, ‘Article 3 Principle of Non-Refoulement’ in Manfred Nowak, Moritz Birk, Giuliana Monina, The United Nations Convention Against Torture and its Optional Protocol: A Commentary (OUP 2019, 2nd edition) Helmut Philipp Aust, ‘Complicity in Violations of International Humanitarian Law’ in Heike Krieger (ed.) Inducing Compliance with International Humanitarian Law – Lessons from the African Great Lakes Region (CUP 2015) – ‘Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility, Observations in the Light of the Recent Work of the International Law Commission’ in Dire Tladi (ed.) Peremptory Norms of General International Law (Jus Cogens) – Disquisitions and Dispositions (Brill 2021) Annyssa Bellal, ‘Arms Transfers and International Human Rights law’ in Stuart Casey-Maslen (ed.) Weapons Under International Human Rights Law (CUP 2014) Samantha Besson, ‘Extraterritoriality in International Human Rights Law: Back to the Jurisdictional Drawing Board’ in Austen Parrish and Cedric Ryngaert (eds) Research Handbook on Extraterritoriality in International Law (Edward Elgar 2023) Crofton Black, ‘Foreign “Liaison Partners”’ in Elspeth Guild, Didier Bigo, Mark Gibney (eds) Extraordinary Rendition – Addressing the Challenges of Accountability (Routledge 2018) Clémentine Bories, ‘The Hague Conference of 1930’ in James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (eds) The Law of International Responsibility (OUP 2010) Olivier Corten and Pierre Klein, ‘The Limits of Complicity as a Ground for Responsibility, Lessons Learned from the Corfu Channel Case’ in Karine Bannelier, Théodore Christakis, Sarah Heathcote (eds) The ICJ and the Evolution of International Law, The Enduring Impact of the Corfu Channel Case (Routledge 2012) Cathryn Costello, ‘The Search for the Outer Edges of Non-refoulement in Europe: Exceptionality and Flagrant Breaches’ in Bruce Burson and David James Cantor (eds) Human Rights and the Refugee Definition (Brill 2016) James Crawford, ‘International Crimes of States’ in James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (eds) The Law of International Responsibility (OUP 2010) – and Amelia Keene, ‘The Structure of State Responsibility under the European Convention on Human Rights’ in Anne van Aaken and Iulia Motoc (eds) The European Convention on Human Rights and General International Law (OUP 2018) – and Jeremy Watkins, ‘International Responsibility’ in Samantha Besson and John Tasioulas (eds) The Philosophy of International Law (OUP 2010) Eric David, ‘Primary and Secondary Rules’ in James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (eds) The Law of International Responsibility (OUP 2010) Christian Dominicé, ‘Attribution of Conduct to Multiple States and the Implication of a State in the Act of Another State’ in James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (eds) The Law of International Responsibility (OUP 2010) Oliver Dörr, ‘Article 31’ in Oliver Dörr and Kirsten Schmalenbach (eds) Vienna Convention on the Law of Treaties: A Commentary (Springer 2018, 2nd edition) Catherine Drummond, ‘Ensuring Respect for IHL by, and in Relation to the Conduct of, Private Actors’ in Eve Massingham and Annabel McConnachie (eds) Ensuring Respect for International Humanitarian Law (Routledge 2021) PROEF PS Joelle Trampert.job_08/28/2024_127A 254 Antony Duff and Tatjana Hörnle, ‘Crimes of Endangerment’ in Kai Ambos, Antony Duff, Alexander Heinze, Julian Roberts, Thomas Weigend (eds) Core Concepts in Criminal Law and Criminal Justice II (CUP 2022) Helen Duffy, ‘Detention and Interrogation Abroad: The ‘Extraordinary Rendition’ Programme’ in André Nollkaemper and Ilias Plakokefalos (eds) The Practice of Shared Responsibility in International Law (CUP 2017) – ‘Global Threats and Fragmented Responses, Climate Change and the Extra-Territorial Scope of Human Rights Obligations’ in Niels Blokker, Daniëlla Dam-de Jong, Vid Prislan (eds) Furthering the Frontiers of International Law: Sovereignty, Human Rights, Sustainable Development (Brill 2021) Thomas Gammeltoft-Hansen, ‘Extraterritorial Human Rights Obligations in regard to Refugees and Migrants’ in Mark Gibney, Gamze Erdem Türkelli, Markus Krajewski, Wouter Vandenhole (eds) The Routledge Handbook on Extraterritorial Human Rights Obligations (Routledge 2022) Andrea Gattini, ‘Breach of International Obligations’ in André Nollkaemper and Ilias Plakokefalos (eds) Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (CUP 2014) Robin Geiß, ‘Common Article 1 of the Geneva Conventions – Scope and Content of the Obligation to ‘Ensure Respect’ – ‘Narrow but Deep’ or ‘Wide and Shallow’ in Heike Krieger (ed.) Inducing Compliance with International Humanitarian Law – Lessons from the African Great Lakes Region (CUP 2015) – ‘The Obligation to Respect and to Ensure Respect for the Conventions’ in Andrew Clapham, Paola Gaeta, Marco Sassòli (eds) The 1949 Geneva Conventions – A Commentary (OUP 2015) Mariagiulia Giuffré and Violeta Moreno-Lax, ‘The Rise of Consensual Containment: from ‘Contactless Control’ to ‘Contactless Responsibility’ for Migratory Flows’ in Satvinder Singh Juss (ed.) Research Handbook on International Refugee Law (Edward Elgar 2019) Kristof Gombeer and Stefaan Smis, ‘The Establishment of ETOs in the Context of Externalised Migration Control’ in Mark Gibney, Gamze Erdem Türkelli, Markus Krajewski, Wouter Vandenhole (eds) The Routledge Handbook on Extraterritorial Human Rights Obligations (Routledge 2022) Sarah Heathcote, ‘State Omissions and Due Diligence, Aspects of Fault, Damage and Contribution to Injury in the Law of State Responsibility’ in Karine Bannelier, Théodore Christakis, Sarah Heathcote (eds) The ICJ and the Evolution of International Law, The Enduring Impact of the Corfu Channel Case (Routledge 2012) Maarten den Heijer, ‘Refoulement’ in André Nollkaemper and Ilias Plakokefalos (eds) The Practice of Shared Responsibility in International Law (CUP 2017) – and Rick Lawson, ‘Extraterritorial Human Rights and the Concept of “Jurisdiction”’ in Malcolm Langford, Wouter Vandenhole, Martin Scheinin, Willem van Genugten (eds) Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (CUP 2013) Jean-Marie Henckaerts and Cornelius Wiesener, ‘Human Rights Obligations of Non-State Armed Groups: An Assessment Based on Recent Practice’ in Ezequiel Heffes, Marcos D Kotlik, Manuel J Ventura (eds) International Humanitarian Law and Non-State Actors: Debates, Law and Practice (Springer 2020) Larissa van den Herik and Emma Irving, ‘Due Diligence and the Obligation to Prevent Genocide and Crimes Against Humanity’ in Heike Krieger, Anne Peters, Leonhard Kreuzer (eds) Due Diligence in the International Legal Order (OUP 2020) Ralph Janik, ‘International Responsibility’ in André Nollkaemper, August Reinisch, Ralph Janik, Florentina Simlinger (eds) International Law in Domestic Courts: A Casebook (OUP 2018) Nina HB Jørgensen, ‘The Obligation of Non-Assistance to the Responsible State’ in James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (eds) The Law of International Responsibility (OUP 2010) PROEF PS Joelle Trampert.job_08/28/2024_127B 255 – ‘Complicity in Genocide and the Duality of Responsibility’ in Bert Swart, Alexander Zahar, Göran Sluiter (eds) The Legacy of the International Criminal Tribunal for the Former Yugoslavia (OUP 2011) Erik Kok, ‘The Principle of Complicity under International Law – Its Application to States and Individuals in Cases involving Genocide, Crimes against Humanity and War Crimes’ in Larissa van den Herik and Carsten Stahn (eds) The Diversification and Fragmentation of International Criminal Law (Brill 2012) 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) Franck Latty, ‘Actions and Omissions’ in James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (eds) The Law of International Responsibility (OUP 2010) Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Erika Feller, Volker Türk, Frances Nicholson (eds) Refugee Protection in International Law, UNHCR’s Global Consultations on International Protection (CUP 2003) Bharat Malkani, ‘Extradition and Non-Refoulement’ in Carol S Steiker and Jordan M Steiker (eds) Comparative Capital Punishment (Edward Elgar 2019) Marko Milanovic, ‘State Acquiescence or Connivance in the Wrongful Conduct of Third Parties in the Jurisprudence of the European Court of Human Rights’ in Gábor Kajtár, Başak Çalı, Marko Milanovic (eds) Secondary Rules of Primary Importance in International Law (OUP 2022) – ‘The International Law of Intelligence Sharing During Military Operations’ in Russell Buchan and Inaki Navarrete (eds) Research Handbook on Intelligence and International Law (Edward Elgar, forthcoming) Giuliana Monina, ‘Article 15 Non-Admissibility of Evidence Obtained by Torture’ in Manfred Nowak, Moritz Birk, Giuliana Monina, The United Nations Convention Against Torture and its Optional Protocol: A Commentary (OUP 2019, 2nd edition) Paolo Palchetti, ‘State Responsibility for Complicity in Genocide’ in Paola Gaeta (ed.) The UN Genocide Convention – A Commentary (OUP 2009) Alain Pellet, ‘Conclusions’ in Christian Tomuschat and Jean-Marie Thouvenin (eds) The Fundamental Rules of the International Legal Order – Jus Cogens and Obligations Erga Omnes (Brill 2005) Matt Pollard, ‘The Use of Information Obtained by Torture or Other Ill-treatment’ in Malcolm D Evans and Jens Modvig (eds) Research Handbook on Torture (Edward Elgar 2020) William Schabas, ‘International Law and the Abolition of the Death Penalty’ in Carol S Steiker and Jordan M Steiker (eds) Comparative Capital Punishment (Edward Elgar 2019) Kirsten Schmalenbach, ‘International Responsibility for Humanitarian Law Violations by Armed Groups’ in Heike Krieger (ed.) Inducing Compliance with International Humanitarian Law – Lessons from the African Great Lakes Region (CUP 2015) Anja Seibert-Fohr, ‘State Responsibility for Genocide under the Genocide Convention’ in Paola Gaeta (ed.) The UN Genocide Convention – A Commentary (OUP 2009) – ‘The ICJ Judgement in the Bosnian Genocide Case and Beyond: A Need to Reconceptualise’ in Christoph Safferling and Eckart Conze (eds) The Genocide Convention Sixty Years after its Adoption (Springer 2010) Martin Sheinin, ‘Just Another Word? Jurisdiction in the Roadmaps of State Responsibility and Human Rights’ in Malcolm Langford, Wouter Vandenhole, Martin Scheinin, Willem van Genugten (eds) Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (CUP 2013) Dinah Shelton and Ariel Gould, ‘Positive and Negative Obligations’ in Dinah Shelton (ed.) The Oxford Handbook of International Human Rights Law (OUP 2013) PROEF PS Joelle Trampert.job_08/28/2024_128A 256 Marina Spinedi, ‘International Crimes of State – The Legislative History’ in Joseph H Weiler, Antonio Cassese and Marina Spinedi (eds) International Crimes of State – A Critical Analysis of the ILC's Draft Article 19 on State Responsibility (De Gruyter 1989) Stefan Talmon, ‘A Plurality of Responsible Actors: International Responsibility for Acts of the Coalition Provisional Authority in Iraq’ in Philip Shiner and Andrew Williams (eds) The Iraq War and International Law (Hart 2008) Christian Tomuschat, ‘International Crimes by States, an Endangered Species?’ in Karel C Wellens (ed.) International Law: Theory and Practice – Essays in Honour of Eric Suy (Nijhoff 1998) Arianna Vedaschi, ‘Extraordinary Renditions – a Practice Beyond Traditional Justice’ in Elspeth Guild, Didier Bigo, Mark Gibney (eds) Extraordinary Rendition – Addressing the Challenges of Accountability (Routledge 2018) Gerrit Zach, ‘Article 1 Definition of Torture’ in Manfred Nowak, Moritz Birk, Giuliana Monina, The United Nations Convention Against Torture and its Optional Protocol: A Commentary (OUP 2019, 2nd edition) Reuven (Ruvi) Ziegler, ‘Non-Refoulement between ‘Common Article 1’ and ‘Common Article 3’’ in David Cantor and Jean-François Durieux (eds) Refuge from Inhumanity? War Refugees and International Humanitarian Law (Brill 2014) Articles in journals and yearbooks Georges Abi-Saab, ‘The Uses of Article 19’ (1999) 10(2) European Journal of International Law 339 Roberto Ago, ‘Le Délit International’ (1939) 68 Collected Courses of the Hague Academy of International Law 419 Stephen Allen, ‘The Scope of Third-Party Responsibility for Serious Human Rights Abuses under the European Convention on Human Rights: Wrongdoing in the British Indian Ocean Territory’ (2016) 16(4) Human Rights Law Review 771 Daniele Amoroso, ‘Moving towards Complicity as a Criterion of Attribution of Private Conducts: Imputation to States of Corporate Abuses in the US Case Law’ (2011) 24 Leiden Journal of International Law 989 Maurizio Arcari, ‘The Future of the Articles on State Responsibility: A Matter of Form or of Substance?’ (2022) Questions of International Law, Zoom-in 93, 3 Hemme Battjes, ‘In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed’ (2009) 22 Leiden Journal of International Law 583 Jon Bauer, ‘Obscured by “Willful Blindness”: States’ Preventive Obligations and the Meaning of Acquiescence under the Convention against Torture’ (2021) 52 Columbia Human Rights Law Review 738 Orna Ben-Naftali and Yuval Shany, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’ (2003) 37(1) Israel Law Review 17 Antal Berkes, ‘The League of Nations and the International Law of State Responsibility’ (2020) 22 International Community Law Review 331 Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25 Leiden Journal of International Law 857 – ‘State and Individual Secondary Liability in Case of International Organizations’ Responsibility – The Challenge of Fairness Unveiled’ (2017) 1 Rivista di Filosofia del Diritto 51 – ‘Due Diligence and Extraterritorial Human Rights Obligations – Mind the Gap!’ (2020) 9(1) ESIL Reflections PROEF PS Joelle Trampert.job_08/28/2024_128B 257 Andrea Bianchi, ‘Human Rights and the Magic of Jus Cogens’ (2008) 19(3) European Journal of International Law 491 Bruno Biazatti, ‘The Future in the Past? The Replication of Existing Treaty Language in the Making of the ILC’s Draft Articles on Crimes against Humanity’ (2023) 34(2) European Journal of International Law 449 Annie Bird, ‘Third State Responsibility for Human Rights Violations’ (2010) 21(4) European Journal of International Law 883 Tom de Boer, ‘Closing Legal Black Holes: The Role of Extraterritorial Jurisdiction in Refugee Rights Protection’ (2014) 28(1) Journal of Refugee Studies 118 Alexandra Boivin, ‘Complicity and Beyond: International Law and the Transfer of Small Arms and Light Weapons’ (2005) 87(859) International Review of the Red Cross 467 Berenice Boutin, ‘Responsibility in Connection with the Conduct of Military Partners’ (2017) 56(1) Military Law and Law of War Review 57 Theo van Boven, ‘Het Anti-Foltercomité Scherpt het Non-Refoulement Beginsel Aan’ (2006) 31(5) Nederlands Tijdschrift voor de Mensenrechten 746 Maya Brehm, ‘The Arms Trade and States’ Duty to Ensure Respect for Humanitarian and Human Rights Law’ (2007) 12(3) Journal of Conflict & Security Law 359 Andrea Breslin, ‘A Reflection on the Legal Obligation for Third States to Ensure Respect for IHL’ (2015) Journal of Conflict & Security Law 1 James Brierly, ‘The Theory of Implied State Complicity in International Claims’ (1928) 9 British Yearbook of International Law 42 Linde Bryk and Miriam Saage-Maaß, ‘Individual Criminal Liability for Arms Exports under the ICC Statute – A Case Study of Arms Exports from Europe to Saudi-led Coalition Members Used in the War in Yemen’ (2019) 17(5) Journal of International Criminal Justice 1117 Jillian Button, ‘Spirited Away (into a Legal Black Hole): The Challenge of Invoking State Responsibility for Extraordinary Rendition’ (2007) 19(3) Florida Journal of International Law 531 Başak Çali, Cathryn Costello, Stewart Cunningham, ‘Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies’ (2020) 21 German Law Journal 355 Antonio Cassese, ‘On the Use of Criminal Law Notions in Determining State Responsibility for Genocide’ (2007) 5 Journal of International Criminal Justice 875 John Cerone, ‘Human Dignity in the Line of Fire: The Application of International Human Rights Law during Armed Conflict, Occupation, and Peace Operations’ (2006) 39(5) Vanderbilt Journal of Transnational Law 1447 – ‘Re-examining International Responsibility: “Complicity” in the Context of Human Rights Violations’ (2008) 14(2) ILSA Journal of International and Comparative Law 525 Hilary Charlesworth, ‘Feminist Methods in International Law’ (1999) 93(2) The American Journal of International Law 379 –, Christine Chinkin, Shelley Wright, ‘Feminist Approaches to International Law’ (1991) 85(4) American Journal of International Law 613 Andrew Clapham, ‘The Arms Trade Treaty: A Call for an Awakening’ (2013) 2(5) ESIL Reflections Pearce Clancy, ‘Neutral Arms Transfers and the Russian Invasion of Ukraine’ (2023) 27 International and Comparative Law Quarterly 527. PROEF PS Joelle Trampert.job_08/28/2024_129A 258 Fons Coomans, ‘The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights in the Work of the United Nations Committee on Economic, Social and Cultural Rights’ (2011) 11(1) Human Rights Law Review 1 Olivier Corten and Vaios Kourtroulis, ‘The Illegality of Military Support to Rebels in the Libyan War: Aspects of Jus Contra Bellum and Jus in Bello’ (2013) 18(1) Journal of Conflict and Security Law 59 James Crawford, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’ (2002) 96(4) The American Journal of International Law 874 Dario Rossi d’Ambrosio, ‘The Human Rights of the Other – Law, Philosophy and Complications in the Extra-Territorial Application of the ECHR’ (2015) 2 SOAS Law Journal 1 Shane Darcy, ‘Human Rights Protection during the War on Terror: Two Steps Back, One Step Forward’ (2007) 16(2) Minnesota Journal of International Law 353 – ‘Assistance, Direction and Control: Untangling International Judicial Opinion on Individual and State Responsibility for War Crimes by Non-State Actors’ (2014) 96(893) International Review of the Red Cross 243 Azadeh Dastyari and Asher Hirsch, ‘The Ring of Steel: Extraterritorial Migration Controls in Indonesia and Libya and the Complicity of Australia and Italy’ (2019) 19(3) Human Rights Law Review 435 Daria Davitti, ‘Beyond the Governance Gap: Accountability in Privatized Migration Control’ (2020) 21 German Law Journal 487 Silvia Dimitrova, ‘Rethinking “Jurisdiction” in International Human Rights Law in Rescue Operations at Sea in the Light of AS and Others v Italy and AS and Others v Malta: A New Right to be Rescued at Sea?’ (2023) 56 Israel Law Review 120 Theresa DiPerna, ‘Small Arms and Light Weapons: Complicity with a View toward Extended State Responsibility’ (2008) 20 Florida Journal of International Law 25 Knut Dörmann and Jose Serralvo, ‘Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations’ (2014) 96(895/896) International Review of the Red Cross 707 Cordula Droege, ‘Transfers of Detainees: Legal Framework, Non-Refoulement and Contemporary Challenges’ (2008) 90(871) International Review of the Red Cross 669 Antony Duff, ‘Criminalizing Endangerment’ (2005) 65(3) Louisiana Law Review 941 Aoife Duffy, ‘Expulsion to Face Torture – Non-Refoulement in International Law’ (2008) 20(3) International Journal of Refugee Law 373 Marius Emberland, ‘The Committee on the Rights of the Child’s Admissibility Decisions in the ‘Syrian Camps Cases’ against France: a Critique from the Viewpoint of Treaty Interpretation’ (2023) 23 Human Rights Law Review 1 Federico Fabbrini, ‘The European Court of Human Rights, Extraordinary Renditions and the Right to the Truth: Ensuring Accountability for Gross Human Rights Violations Committed in the Fight Against Terrorism’ (2014) 14 Human Rights Law Review 85 Luca Ferro, ‘Brothers in Arms: Ancillary State Responsibility and Individual Criminal Liability for Arms Transfers to International Criminals’ (2015) 54 The Military Law and the Law of War Review 139 – ‘Western Gunrunners, (Middle-)Eastern Casualties: Unlawfully Trading Arms with States Engulfed in Yemeni Civil War?’ (2019) Journal of Conflict & Security Law 1 – and Nele Verlinden, ‘Neutrality During Armed Conflicts: A Coherent Approach to Third-State Support for Warring Parties’ (2018) 17 Chinese Journal of International Law 15 PROEF PS Joelle Trampert.job_08/28/2024_129B 259 Dieter Fleck, ‘International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Humanitarian Law’ (2006) 11(2) Journal of Conflict and Security Law 179 Beke Freye and Fiona H McKay, ‘An Investigation of Incident Reports from the Detention Center Nauru: Has Australia Breached the Universal Declaration of Human Rights?’ (2021) 20(4) Journal of Human Rights 449 Sarah Fulton, ‘Cooperating with the Enemy of Mankind: Can States Simply Turn a Blind Eye to Torture?’ (2015) 16(5) The International Journal of Human Rights 773 Paola Gaeta, ‘On What Conditions Can a State Be Held Responsible for Genocide?’ (2007) 18(4) European Journal of International Law 631 Giorgio Gaja, ‘Interpreting Articles Adopted by the International Law Commission’ (2015) British Yearbook of International Law 1 Alexandre Skander Galand, ‘Defer or Revise? Horizontal Dialogue Between UN Treaty Bodies and Regional Human Rights Courts in Duplicative Legal Proceedings’ (2023) 23 Human Rights Law Review 1 Thomas Gammeltoft-Hansen and James Hathaway, ‘Non-Refoulement in a World of Cooperative Deterrence’ (2015) 53(2) Columbia Journal of Transnational Law 235 Thomas Gammeltoft-Hansen and Nikolas Tan, ‘The End of the Deterrence Paradigm? Future Directions for Global Refugee Policy’ (2017) 5(1) Journal on Migration and Human Security 28 John Gardner, ‘Complicity and Causality’ (2007) 1 Criminal Law and Philosophy 127 Andrea Gattini, ‘Smoking/No Smoking: Some Remarks on the Current Place of Fault in the ILC Draft Articles on State Responsibility’ (1999) 10(2) European Journal of International Law 397 – ‘Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s Genocide Judgment’ (2007) 18(4) European Journal of International Law 695 – ‘Evidentiary Issues in the ICJ’s Genocide Judgment’ (2007) 5 Journal of International Criminal Justice 889 Mark Gibney, ‘Genocide and State Responsibility’ (2007) 7(4) Human Rights Law Review 760 – ‘The Downing of MH17: Russian Responsibility?’ (2015) 15(1) Human Rights Law Review 169 –, Katarina Tomasevski, Jens Vedsted-Hansen, ‘Transnational State Responsibility for Violations of Human Rights’ (1999) 12 Harvard Human Rights Journal 267 Mariagiulia Giuffré, ‘An Appraisal of Diplomatic Assurances One Year after Othman (Abu Qatada) v United Kingdom (2012)’ (2013) 2 International Human Rights Law Review 266 – ‘State Responsibility Beyond Borders: What Legal Basis for Italy’s Push-backs to Libya?’ (2013) 24(4) International Journal of Refugee Law 692 – ‘Deportation with Assurances and Human Rights: The Case of Persons Suspected or Convicted of Serious Crimes’ (2017) 15(1) Journal of International Criminal Justice 75, – ‘A Functional-Impact Model of Jurisdiction: Extraterritoriality Before the European Court of Human Rights’ (2021) Questions of International Law, Zoom-in 82, 53 Bernhard Graefrath, ‘Complicity in the Law of International Responsibility’ (1996) 29 Revue Belge de Droit International 370 Kathryn Greenman, ‘A Castle Built on Sand? 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Beschouwingen n.a.v. het arrest Soering van het Europees Hof voor de Rechten van de Mens’ (1990) 23 Rechtskundig Weekblad 761 Marten Zwanenburg, ‘The “External Element” of the Obligation to Ensure Respect for the Geneva Conventions: A Matter of Treaty Interpretation’ (2021) 97 International Law Studies 621 Silke Zwijsen, Machiko Kanetake and Cedric Ryngaert, ‘State Responsibility for Arms Transfers – the Law of State Responsibility and the Arms Trade Treaty’ (2020) Ars Aequi 151 Research reports Sam Raphael, Crofton Black, Ruth Blakeley, ‘CIA Torture Unredacted’ (2019) <https://www.therenditionproject.org.uk/unredacted/the-report.html> Cornelius Wiesener and Astrid Kjeldgaard-Pedersen, ‘State Responsibility for the Misconduct of Partners in International Military Operation – General and Specific Rules of International Law’ (Djøf Forlag 2021) Blog posts Helmut Philipp Aust, ‘A Path towards the Moral Sophistication of International Law? Some Remarks on Miles Jackson’s “Complicity in International Law”’ (EJIL:Talk!, 13 April 2017) <https://www.ejiltalk.org/a-path-towards-the-moral-sophistication-of-international-law-some-remarks-on-miles-jacksons-complicity-in-international-law/> PROEF PS Joelle Trampert.job_08/28/2024_134A 268 Martin Baumgartner, ‘Lost in Citation: How to Reference the UN Charter and the ICJ Statute’ (Opinio Juris, 29 August 2023) <https://opiniojuris.org/2023/08/29/lost-in-citation-how-to-reference-the-un-charter-and-the-icj-statute/> Samantha Besson, ‘LJIL Symposium: A Response by Samantha Besson’ (Opinio Juris, 21 December 2012) <https://opiniojuris.org/2012/12/21/ljil-symposium-a-response-by-samantha-besson/> Gabriella Citroni, ‘No More Elusion of Responsibility for Rescue Operations at Sea: the Human Rights Committee’s Views on the Case A.S., D.I., O.I. and G.D. v. Italy and Malta’ (Opinio Juris, 9 March 2021) <http://opiniojuris.org/2021/03/09/no-more-elusion-of-responsibility-for-rescue-operations-at-sea-the-human-rights-committees-views-on-the-case-a-s-d-i-o-i-and-g-d-v-italy-and-malta/> Tom Dannenbaum, ‘A Disappointing End of the Road for the Mothers of Srebrenica Litigation in the Netherlands’ (EJIL:Talk!, 23 July 2019) <https://www.ejiltalk.org/a-disappointing-end-of-the-road-for-the-mothers-of-srebrenica-litigation-in-the-netherlands/> Ryan Goodman, Christof Heyns and Yuval Shany, ‘Human Rights, Deprivation of Life and National Security: Q&A with Christof Heyns and Yuval Shany on General Comment 36’ (Just Security, 4 February 2019) <https://www.justsecurity.org/62467/human-life-national-security-qa-christof-heyns-yuval-shany-general-comment-36/> Ryan Goodman and Vladyslav Lanovoy, ‘State Responsibility for Assisting Armed Groups: A Legal Risk Analysis’ (Just Security, 22 December 2016) <https://www.justsecurity.org/35790/state-responsibility-aiding-assisting-armed-groups-legal-risk-analysis/> Miles Jackson, ‘“Complicity in International Law”: Author’s Response’ (EJIL:Talk!, 14 April 2017) <https://www.ejiltalk.org/complicity-in-international-law-authors-response/> Hannes Jöbstl, ‘An Unforeseen Pandora’s Box? Absolute Non-Refoulement Obligations under Article 5 of the ILC Draft Articles on Crimes Against Humanity’ (EJIL:Talk!, 20 May 2019) <https://www.ejiltalk.org/an-unforeseen-pandoras-box-absolute-non-refoulement-obligations-under-article-5-of-the-ilc-draft-articles-on-crimes-against-humanity/> Marko Milanovic, ‘Repatriating the Children of Foreign Terrorist Fighters and the Extraterritorial Application of Human Rights’ (EJIL:Talk!, 10 November 2020) <https://www.ejiltalk.org/repatriating-the-children-of-foreign-terrorist-fighters-and-the-extraterritorial-application-of-human-rights/> – ‘Drowning Migrants, the Human Rights Committee, and Extraterritorial Human Rights Obligations’ (EJIL:Talk!, 16 March 2021) <https://www.ejiltalk.org/drowning-migrants-the-human-rights-committee-and-extraterritorial-human-rights-obligations/> – ‘European Court Finds Russia Assassinated Alexander Litvinenko’ (EJIL:Talk!, 23 September 2021) <https://www.ejiltalk.org/european-court-finds-russia-assassinated-alexander-litvinenko/> – ‘The European Court’s Admissibility Decision in Ukraine and the Netherlands v Russia: The Good, the Bad and the Ugly – Part I’ (EJIL:Talk!, 26 January 2023) <https://www.ejiltalk.org/the-european-courts-admissibility-decision-in-ukraine-and-the-netherlands-v-russia-the-good-the-bad-and-the-ugly-part-i/> – ‘The European Court’s Admissibility Decision in Ukraine and the Netherlands v Russia: The Good, the Bad and the Ugly – Part II’ (EJIL:Talk!, 26 January 2023) <https://www.ejiltalk.org/the-european-courts-admissibility-decision-in-ukraine-and-the-netherlands-v-russia-the-good-the-bad-and-the-ugly-part-ii/> Daniel Møgster, ‘Towards Universality: Activities Impacting the Enjoyment of the Right to Life and the Extraterritorial Application of the ICCPR’ (EJIL:Talk!, 27 November 2018) <https://www.ejiltalk.org/towards-universality-activities-impacting-the-enjoyment-of-the-right-to-life-and-the-extraterritorial-application-of-the-iccpr/> André Nollkaemper, ‘The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?’ (EJIL:Talk!, 24 December 2012) <http://www.ejiltalk.org/the-ecthr-finds-macedonia-responsible-in-connection-with-torture-by-the-cia-but-on-what-basis/> PROEF PS Joelle Trampert.job_08/28/2024_134B 269 Annick Pijnenburg, ‘HF and Others v France: Extraterritorial Jurisdiction without Duty to Repatriate IS-Children and their Mothers’ (EJIL:Talk!, 14 October 2022) <https://www.ejiltalk.org/hf-and-others-v-france-extraterritorial-jurisdiction-without-duty-to-repatriate-is-children-and-their-mothers/> Alessandro Pizzuti and Clare Frances Moran, ‘The Memorandum of Understanding between Italy and Libya: Does It Create Human Rights Obligations on the Part of Italy?’ (Opinio Juris, 5 August 2021) <http://opiniojuris.org/2021/08/05/the-memorandum-of-understanding-between-italy-and-libya-does-it-create-human-rights-obligations-on-the-part-of-italy/> Niklas Reetz, ‘Belarus is Complicit in Russia’s War of Aggression’ (EJIL:Talk!, 1 March 2022) <https://www.ejiltalk.org/belarus-is-complicit-in-russias-war-of-aggression/> Elies van Sliedregt, ‘New Insights and Structural Clarity: Miles Jackson’s “Complicity in International Law”’ (EJIL:Talk!, 12 April 2017) <https://www.ejiltalk.org/new-insights-and-structural-clarity-miles-jacksons-complicity-in-international-law/> Joëlle Trampert, ‘Death Penalty Assurances and the Data Protection Act – Fixing a Hole? The Case of Elgizouli v Secretary of State for the Home Department’ (Rethinking SLIC, 8 April 2020) <https://www.rethinkingslic.org/blog/state-responsibility/65-death-penalty-assurances-and-the-data-protection-act-fixing-a-hole-the-case-of-elgizouli-appellant-v-secretary-of-state-for-the-home-department-respondent?> – ‘A Clear Risk of What? The Egyptian Navy, the Dutch Arms Export Policy and Linguistic Inconsistencies in the EU Common Position’ (Rethinking SLIC, 6 December 2021) <https://rethinkingslic.org/blog/state-responsibility/101-a-clear-risk-of-what-the-egyptian-navy-the-dutch-arms-export-policy-and-linguistic-inconsistencies-in-the-eu-common-position> – ‘Possible Implications of the Dutch MH17 Judgment for the Netherlands’ Inter-State Case before the ECtHR’ (EJIL:Talk!, 12 December 2022) <https://www.ejiltalk.org/possible-implications-of-the-dutch-mh17-judgment-for-the-netherlands-inter-state-case-before-the-ecthr/> Antonios Tzanakopoulos, ‘The “ISIS Beatles” and “Non-Territorial” Application of the European Convention of Human Rights’ (Just Security, 17 December 2018) <https://www.justsecurity.org/61886/isis-beatles-non-territorial-application-european-convention-human-rights/> Case notes Maarten den Heijer, ‘El Masri t Voormalige deelrepubliek Macedonië’ JV 2013/111 afl. 5 Vassilis Pergantis, ‘Nasr v Italy’ (2016) 110(4) American Journal of International Law 761 PhD theses Alina Balta, What’s Law Got to Do with It? Assessing International Courts’ Contribution to Reparative Justice for Victims of Mass Atrocities through their Reparations Regimes (diss. Tilburg 2020) Mariana Gkliati, Systemic accountability of the European Border and Coast Guard: the legal responsibility of Frontex for human rights violations (diss. Leiden 2021) Meijers Research Institute Series 379 Lene Guercke, Protecting Victims of Disappearances Committed by Organised Criminal Groups: State Responsibility in International Human Rights Law and the Experiences of Human Rights Practitioners in Mexico (diss. KU Leuven 2021) Annick Pijnenburg, At the Frontiers of State Responsibility, Socio-economic Rights and Cooperation on Migration (diss. Tilburg 2021) Intersentia Human Rights Research Series 95 Floris Tan, The Duty to Investigate in Situations of Armed Conflict, an Examination under International Humanitarian Law, International Human Rights Law, and Their Interplay (diss. Leiden 2022) Meijers Research Institute Series 386 PROEF PS Joelle Trampert.job_08/28/2024_135A 270 Andrea Varga, Establishing State Responsibility in the Absence of Effective Government (diss. Leiden 2020) Meijers Research Institute Series 347 Nele Verlinden, “Are We at War?” State Support to Parties in Armed Conflict: Consequences under Jus in Bello, Jus ad Bellum and Neutrality Law (diss. KU Leuven 2019) Newspaper articles Julian Borger, ‘Austria says UK push to arm Syrian rebels would violate international law’ The Guardian, 14 May 2013 Antonio Cassese, ‘A Judicial Massacre’ The Guardian, 27 February 2007 Leonie van Nierop, ‘Nederlandse honden in dienst van leger Israël’ NRC Handelsblad, 26 October 2015 – , ‘Zijn honden wapens? Ja, als ze bijten’ NRC Handelsblad, 26 October 2015 John Pomfret, ‘We asked Poland to hide our black sites. Then we left it hanging.’ The Washington Post, 29 October 2021 ‘The Guantánamo Docket’, The New York Times, updated 12 February 2024 <https://www.nytimes.com/interactive/2021/us/guantanamo-bay-detainees.html> Treaties, EU legislation, other agreements Treaties Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) XV UNCIO 335, amendments in 557 UNTS 143, 638 UNTS 308 and 892 UNTS 119 (UN Charter) Statute of the International Court of Justice (adopted 24 October 1945, entered into force 14 April 1946) XV UNCIO 355 (ICJ Statute) Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) Geneva Convention relative to the treatment of prisoners of war (adopted 2 November 1950, entered into force 21 October 1950) 75 UNTS 135 (Geneva Convention III or GC III) Geneva Convention relative to the protection of civilian persons in time of war (adopted 2 November 1950, entered into force 21 October 1950) 75 UNTS 287 (Geneva Convention IV or GC IV) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (AP I or Protocol I) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (adopted 8 December 2005, entered into force 14 January 2007) 2404 UNTS 261 (AP III or Protocol III) Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 (ECHR or Convention) Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto (adopted 16 September 1963, entered into force 2 May 1968) ETS No. 046 (Protocol No. 4) International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 9 (ICCPR or Covenant) PROEF PS Joelle Trampert.job_08/28/2024_135B 271 Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (First Optional Protocol) Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (ACHR) International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entered into force 18 July 1976) 1015 UNTS 243 International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 2 International Convention on Maritime Search and Rescue (adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 363 (ACHPR) United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (UNCAT or Torture Convention) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (adopted 3 September 1992, entered into force 29 April 1997) 1975 UNTS 45 (CWC or Chemical Weapons Convention) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (adopted 18 September 1997, entered into force 1 March 1999) 2056 UNTS 211 (Mine Ban Convention) Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute) International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010) 2716 UNTS 3 (ICPPED) Convention on Cluster Munitions (adopted 30 May 2008, entered into force 1 August 2010) 2688 UNTS 39 (CCM) Arms Trade Treaty (adopted 2 April 2013, entered into force 24 December 2014) 3013 UNTS 269 (ATT) EU legislation Charter of Fundamental Rights of the European Union (adopted 7 December 2000, entered into force 1 December 2009) OJ 2012/C 326/02 391 (CFR or Charter) Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, OJ L 335/99 (EUCP or EU Common Position) NB: this is not a legislative act in the sense of the TFEU, but a position adopted under Article 29 TEU. Member States are required to ‘ensure that their national policies conform to the Union positions’ Regulation (EU) 2019/125 of the European Parliament and of the Council of 16 January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment OJ L30/1 (ATR) PROEF PS Joelle Trampert.job_08/28/2024_136A 272 Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast) OJ L 206/1 (DUR) Other agreements Memorandum of Understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and the Italian Republic, signed in Rome, 2 February 2017. For the Italian version, see <https://www.governo.it/sites/governo.it/files/Libia.pdf>, for an English translation, see <https://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf> Memorandum of Understanding between the Government of National Accord of the State of Libya and the Government of the Republic of Malta in the field of combatting illegal immigration, signed in Tripoli, 28 May 2020. For the English version, which is the original, see <https://www.statewatch.org/media/documents/news/2020/jun/malta-libya-mou-immigration.pdf> Jurisprudence and treaty body output African Commission of Human Rights Decisions Al-Asad v the Republic of Djibouti, Communication 383/10 (ACmHPR, 12 May 2014) Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, Communication 155/96 (ACmHPR, 27 October 2001) General Comments General Comment No. 3 on Article 4 (right to life) of the African Charter on Human and Peoples’ Rights (ACmHPR, 12 December 2015) European Commission of Human Rights Altun v Germany, App No. 10308/83 (decision) (ECmHR, 3 May 1983) Ersöz and Others v Turkey, App No. 23144/93 (report) (ECmHR, 29 October 1998) Kaya v Turkey, App No 22535/93 (report) (ECmHR, 23 October 1998) Kılıç v Turkey, App No. 22492/93 (report) (ECmHR, 23 October 1998) Tugar v Italy, App No. 22869/93 (decision) (ECmHR, 18 October 1995) Yaşa v Turkey, App No. 22495/93 (report) (ECmHR, 8 April 1997) European Court of Human Rights A. and B. v Georgia, App No. 73975/16 (ECtHR, 10 February 2022) Abu Zubaydah v Lithuania, App No. 46454/11 (ECtHR, 31 May 2018) A.L. (X.W.) v Russia, App No. 44095/14 (ECtHR, 29 October 2015) Al-Adsani v the United Kingdom [GC] App No. 35763/97 (ECtHR, 21 November 2001) Al-Dulimi and Montana Management Inc. v Switzerland [GC] App No. 5809/08 (ECtHR, 21 June 2016) PROEF PS Joelle Trampert.job_08/28/2024_136B 273 Al-Hawsawi v Lithuania, App No. 6383/17 (ECtHR, 16 January 2024) Al-Jedda v the United Kingdom [GC] App No. 27021/08 (ECtHR, 7 July 2011) Al Nashiri v Poland, App No. 28761/11 (ECtHR, 24 July 2014) Al Nashiri v Romania, App No. 33234/12 (ECtHR, 31 May 2018) Al-Saadoon and Mufdhi v the United Kingdom, App No. 61498/08 (ECtHR, 2 March 2010) Al-Skeini and Others v the United Kingdom [GC] App No. 55721/07 (ECtHR, 7 July 2011) Alzery v Sweden, App No. 10786/04 (decision) (ECtHR, 26 October 2004) Babar Ahmad and Others v the United Kingdom, App Nos 24027/07, 11949/08, and 36742/08 (decision) (ECtHR, 6 July 2010) Banković and Others v Belgium and Others [GC] App No. 52207/99 (decision) (ECtHR, 12 December 2001) Begheluri and Others v Georgia, App No. 28490/02 (ECtHR, 7 October 2014) Ben El Mahi v Denmark, App No. 5853/06 (decision) (ECtHR, 11 December 2006) Carter v Russia, App No. 20914/07 (ECtHR, 21 September 2021) Chahal v the United Kingdom, App No. 22414/93 (ECtHR, 15 November 1996) Chernega and Others v Ukraine, App No. 74768/10 (ECtHR, 18 June 2019) Cruz Varas and Others v Sweden, App No. 15576/89 (ECtHR, 20 March 1991) Cyprus v Turkey [GC] App No. 25781/94 (merits) (ECtHR, 10 May 2001) Cyprus v Turkey [GC] App No. 25781/94 (just satisfaction) (ECtHR, 12 May 2014) Djokaba Lambi Longa v the Netherlands, App No. 33917/12 (decision) (ECtHR, 9 October 2012) E. and Others v the United Kingdom, App No. 33218/96 (ECtHR, 26 November 2002) Paul and Audrey Edwards v the United Kingdom, App No. 46477/99 (ECtHR, 14 March 2002) El-Masri v the Former Yugoslav Republic of Macedonia [GC] App No. 39630/09 (ECtHR, 13 December 2012) F. v the United Kingdom, App No. 17341/03 (decision) (ECtHR, 22 June 2004) Gäfgen v Germany [GC] App No. 22978/05 (ECtHR, 1 June 2010) Gaidukevich v Georgia, App No. 38650/18 (ECtHR, 15 June 2023) Galić v the Netherlands, App No. 22617/07 (decision) (ECtHR, 9 June 2009) Georgia v Russia (II) [GC] App No. 38263/08 (ECtHR, 21 January 2021) Güzelyurtlu and Others v Cyprus and Turkey [GC] App No. 36925/07 (ECtHR, 29 January 2019) Haji and Others v Azerbaijan, App No. 3503/10 (ECtHR, 1 October 2020) Hanan v Germany [GC] App No. 4871/16 (ECtHR, 16 February 2021) Hassan v the United Kingdom [GC] App No. 29750/09 (ECtHR, 16 September 2014) PROEF PS Joelle Trampert.job_08/28/2024_137A 274 H.F. and Others v France [GC] App Nos 24384/19 and 44234/20 (ECtHR, 14 September 2022) Hirsi Jamaa and Others v Italy [GC] App No. 27765/09 (ECtHR, 23 February 2012) H.L.R. v France [GC] App No. 24573/94 (ECtHR, 29 April 1997) Husayn (Abu Zubaydah) v Poland, App No. 7511/13 (ECtHR, 24 July 2014) Identoba and Others v Georgia, App No. 73235/12 (ECtHR, 12 May 2015) Ilaşcu and Others v Moldova and Russia [GC] App No. 48787/99 (ECtHR, 8 July 2004) Ilias and Ahmed v Hungary [GC] App No. 47287/15 (ECtHR, 21 November 2019) Ireland v the United Kingdom, App No. 5310/71 (ECtHR, 18 January 1978) Iskandarov v Russia, App No. 17185/05 (ECtHR, 23 September 2010) Jaloud v the Netherlands [GC] App No. 47708/08 (ECtHR, 20 November 2014) Khasanov and Rakhmanov v Russia [GC] App Nos 28492/15 and 49975/15 (ECtHR, 29 April 2022) Kurt v Austria [GC] App No. 62903/15 (ECtHR, 15 June 2021) Loizidou v Turkey [GC] App No. 15318/89 (preliminary objections) (ECtHR, 23 March 1995) Makuchyan and Minasyan v Azerbaijan and Hungary, App No. 17247/13 (ECtHR, 26 May 2020) M.C. and A.C. v Romania, App No. 12060/12 (ECtHR, 12 April 2016) Medvedyev and Others v France [GC] App No. 3394/03 (ECtHR, 19 March 2010) M.N. and Others v Belgium [GC] App No. 3599/18 (ECtHR, 5 May 2020) Nasr et Ghali c Italie, App No. 44883/09 (ECtHR, 23 February 2016) O’Keeffe v Ireland [GC] App No. 35810/09 (ECtHR, 28 January 2014) Osman v the United Kingdom [GC] App No. 23452/94 (ECtHR, 28 October 1998) Othman (Abu Qatada) v the United Kingdom, App No. 8139/09 (ECtHR, 17 January 2012) Ould Barar v Sweden, App No. 42367/98 (decision) (ECtHR, 19 January 1999) Paposhvili v Belgium [GC] App No. 41738/10 (ECtHR, 13 December 2016) Premininy v Russia, App No. 44973/04 (ECtHR, 10 February 2011) Ramzy v the Netherlands, App No. 25424/05 (decision) (ECtHR, 27 May 2008) Rantsev v Cyprus and the Russian Federation, App No. 25965/04 (ECtHR, 7 January 2010) Razvozzhayev v Russia and Ukraine and Udaltsov v Russia, App Nos 75734/12, 2695/15, and 55325/15 (ECtHR, 19 November 2019) Saadi v Italy, App No. 37201/06 (ECtHR, 28 February 2008) Šilih v Slovenia, App No. 71463/01 (ECtHR, 9 April 2009) PROEF PS Joelle Trampert.job_08/28/2024_137B 275 Soering v the United Kingdom, App No. 14038/88 (ECtHR, 7 July 1989) S.P. and Others v Russia, App Nos 36463/11 and 10 others (ECtHR, 2 May 2023) *S.S. et Autres c Italie, App No. 21660/18 (*pending; submitted 3 May 2018, communicated 26 June 2019) Storck v Germany, App No. 61603/00 (ECtHR, 16 June 2005) Tsartsidze and Others v Georgia, App No. 18766/04 (ECtHR, 17 January 2017) Tkhelidze v Georgia, App No. 33056/17 (ECtHR, 8 July 2021) Ukraine and the Netherlands v Russia [GC] App Nos 43800/14, 8019/16, and 28525/20 (decision) (ECtHR, 30 November 2022) Vilvarajah and Others v the United Kingdom, App Nos 13163/87, 13164/87, 13165/87, 13447/87 and 13448/87 (ECtHR, 30 October 1991) Women’s Initiatives Supporting Group and Others v Georgia, App Nos 73204/13 and 74959/13 (ECtHR 16 December 2021) X. and Others v Bulgaria [GC] App No. 22457/16 (ECtHR, 2 February 2021) Z. and T. v the United Kingdom, App No. 27034/05 (decision) (ECtHR 28 February 2006) Inter-American Court of Human Rights The Environment and Human Rights, Advisory Opinion OC-23/17, Series A No. 23 (IACtHR, 15 November 2017) Denunciation of the American Convention on Human Rights and the Charter of the Organization of American States and the Consequences for State Human Rights Obligations, Advisory Opinion OC-26/20, Series A No. 26 (IACtHR, 9 November 2020) International Court of Justice Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgement, ICJ Reports 2007, 43 (ICJ, 26 February 2077) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), Provisional Measures, ICJ Reports 2020, 3 (ICJ, 23 January 2020) Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v Syrian Arab Republic), Provisional Measures, ICJ General List No. 188 (ICJ, 16 November 2023) Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), Provisional Measures, ICJ General List No. 192 (ICJ, 26 January 2024) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgement, ICJ Reports 2005, 168 (ICJ, 19 December 2005) Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania), Judgement, ICJ Reports 1949, 4 (ICJ, 9 April 1949) Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgement, ICJ Reports 2012, 99 (ICJ, 3 February 2012) PROEF PS Joelle Trampert.job_08/28/2024_138A 276 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16 (ICJ, 21 June 1971) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136 (ICJ, 9 July 2004) Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, ICJ Reports 2019, 95 (ICJ, 25 February 2019) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgement, ICJ Reports 1986, 14 (ICJ, 27 June 1986) Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America), Judgement, ICJ Reports 1954, 19 (ICJ, 15 June 1954) Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgement, ICJ Reports 2012, 422 (ICJ, 20 July 2012) Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, 15 (ICJ, 28 May 1951) United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), Judgement, ICJ Reports 1980, 3 (ICJ, 24 May 1980) International Criminal Tribunal for the former Yugoslavia Prosecutor v Anto Furundžija, Judgement, Case No. IT-95-17/1-T (ICTY, 10 December 1998) Prosecutor v Duško Tadić, Judgement, Case No. IT-94-1-A (ICTY, 15 July 1999) Prosecutor v Radislav Krstić, Judgement, Case No. IT-98-33-T (ICTY, 2 August 2001) UN Committee against Torture Decisions Agiza v Sweden, UN Doc CAT/C/34/D/233/2003 (CmAT, 20 May 2005) Attia v Sweden, UN Doc CAT/C/31/D/199/2002 (CmAT, 17 November 2003) Dzemajl and Others v Yugoslavia, UN Doc CAT/C/29/D/161/2000 (CmAT, 21 November 2002) Elmi v Australia, UN Doc CAT/C/22/D/120/1998 (CmAT, 14 May 1999) M.K.M. v Australia, UN Doc CAT/C/60/D/681/2015 (CmAT, 10 May 2017) M.Z. v Belgium, UN Doc CAT/C/67/D/813/2017 (CmAT, 2 August 2019) Osmani v Serbia, UN Doc CAT/C/42/D/261/2005 (CmAT, 8 May 2009) General Comments General Comment No. 2 on the implementation of Article 2 by States parties, UN Doc CAT/C/GC/2 (CmAT, 24 January 2008) General Comment No. 4 on the implementation of Article 3 of the Convention in the context of Article 22, UN Doc CAT/C/GC/4 (CmAT, 4 September 2018) Concluding Observations PROEF PS Joelle Trampert.job_08/28/2024_138B 277 Conclusions and recommendations following the report of the United States of America, UN Doc CAT/C/USA/CO/2 (CmAT, 25 July 2006) UN Committee for the Rights of the Child Decisions F.B. and Others v France, CRC/C/86/D/R.77/2019 (CRC, 4 February 2021) L.H. and Others v France, CRC/C/85/D/79/2019-CRC/C/85/D/109/2019 (CRC, 30 September 2020) P.N., K.K. and O.M. v Finland, CRC/C/91/D/100/2019 (CRC, 12 September 2022) Sacchi and Others v Argentina, CRC/C/88/D/104/2019 (CRC, 22 September 2021) UN Human Rights Committee Decisions Ahani v Canada, UN Doc CCPR/C/80/D/1051/2002 (HRC, 29 March 2004) Alzery v Sweden, UN Doc CCPR/C/88/D/1416/2005 (HRC, 25 October 2006) A.S. and Others v Italy, UN Doc CCPR/C/130/D/3042/2017 (HRC, 4 November 2020) A.S. and Others v Malta, UN Doc CCPR/C/128/D/3043/2017 (HRC, 13 March 2020) A.R.J. v Australia, UN Doc CCPR/C/60/D/692/1996 (HRC, 28 July 1997) Hicks v Australia, UN Doc CCPR/C/115/D/2005/2010 (HRC, 5 November 2015) Kindler v Canada, Un Doc CCPR/C/48/D/470/1991 (HRC, 30 July 1993) Judge v Canada, UN Doc CCPR/C/78/D/829/1998 (HRC, 5 August 2002) Lopez Burgos v Uruguay, UN Doc CCPR/C/13/D/52/1979 (HRC, 29 July 1981) Munaf v Romania, UN Doc CCPR/C/96/D/1539/2006 (HRC, 30 July 2009) Serna and Others v Colombia, UN Doc CCPR/C/114/D/2134/2012 (HRC, 9 July 2015) Yassin and Others v Canada UN Doc CCPR/C/120/D/2285/2013 (HRC, 26 July 2017) General Comments General Comment No. 20 on Article 7 (prohibition of torture or other cruel, inhuman or degrading treatment or punishment) HRI/GEN/1/Rev.1 at 30, 29 July 1994 (HRC, 10 March 1992) General Comment No. 31 on the nature of the general legal obligation imposed on States parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (HRC, 26 May 2004) General Comment No. 35 on Article 9 (liberty and security of person) UN Doc CCPRC/GC/35 (HRC, 16 December 2014) General Comment No. 36 on Article 6 (right to life) UN Doc CCPR/C/GC/36 (HRC, 3 September 2019) Concluding Observations PROEF PS Joelle Trampert.job_08/28/2024_139A 278 Concluding Observations on the United Kingdom of Great Britain and Northern Ireland, UN Doc CCPR/C/GBR/CO/6 (HRC, 30 July 2008) Concluding Observations on Germany, UN Doc CCPR/C/DEU/CO/6 (HRC, 12 November 2012) Concluding Observations on the United States of America, UN Doc CCPR/C/USA/CO/4 (HRC, 23 April 2014) Concluding Observations on Canada, UN Doc CCPR/C/CAN/CO/6 (HRC, 13 August 2015) Concluding Observations on the Republic of Korea, UN Doc CCPR/C/KOR/CO/4 (HRC, 3 December 2015) Domestic courts Germany Federal Administrative Court, ECLI:DE:BVerwG:2005:210605U2WD12.04.0, 21 June 2005 The Netherlands Stichting Mothers of Srebrenica and Others v the Netherlands, Court of Appeal of The Hague, ECLI:NL:GHDHA:2017:1761, 27 June 2017 (see for an English, non-official translation ECLI:NL:GHDHA:2017:3376) Stichting Oxfam Novib and Others v the Netherlands, District Court of the Hague, ECLI:NL:RBDHA:2023:19744, 15 December 2023 (summary proceedings) Stichting Oxfam Novib and Others v the Netherlands, Court of Appeal of the Hague, ECLI:NL:GHDHA:2024:191, 12 February 2024 (see for a press release in English <https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Gerechtshoven/Gerechtshof-Den-Haag/Nieuws/Paginas/The-Netherlands-has-to-stop-the-export-of-F-35-fighter-jet-parts-to-Israel.aspx>) Stichting Vredesbeweging PAX and Others v the Netherlands, District Court of the Hague, ECLI:NL:RBDHA:2021:12810, 23 November 2021 (summary proceedings) Stichting Vredesbeweging PAX and Others v the Netherlands, Court of Appeal of The Hague, ECLI:NL:GHDHA:2022:834, 17 May 2022 The Netherlands v Stichting Mothers of Srebrenica and Others, Supreme Court of the Netherlands, ECLI:NL:HR:2019:1223, 19 July 2019 (see for an English, non-official translation ECLI:NL:HR:2019:1284) The United Kingdom Al-Saadoon and Others v Secretary of State for Defence [2015] EWHC 715 (Admin), 17 March 2015 El Gizouli (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 10, 25 March 2020 R (on the Application of Maha El Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 (Admin), 18 January 2019 R (on the Application of Campaign Against Arms Trade) v Secretary of State for International Trade [2017] EWHC 1726 (Admin), 10 July 2017 R (on the Application of Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020, 20 June 2019 R (on the Application of Campaign Against Arms Trade) v Secretary of State for International Trade [2023] EWHC 1343 (Admin), 6 June 2023 PROEF PS Joelle Trampert.job_08/28/2024_139B 279 IO, NGO, and national documents UN documents UN Reports Human Rights Council, ‘Human Rights and Transnational Corporations and Other Business Enterprises,’ UN Doc A/HRC/Res/17/4, 16 June 2011 endorsing the Guiding Principles on Business and Human Rights: Implementing the UN “Protect, Respect and Remedy” Framework UN Doc A/HRC/17/31, 21 March 2011 (UNGPs) Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E Méndez, UN Doc A/HRC/25/60, 10 April 2014 Interim report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E Méndez, UN Doc A/70/303, 7 August 2015 Report of the UN High Commissioner for Human Rights containing the findings of the Group of Eminent International and Regional Experts, UN Doc A/HRC/39/43, 17 August 2018 Report of the Group of Eminent International and Regional Experts as submitted to the United Nations High Commissioner for Human Rights, UN Doc A/HRC/42/17, 9 August 2019 Report of the Group of Eminent International and Regional Experts on Yemen, UN Doc A/HRC/45/6, 28 September 2020 Report of the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Michael Lynk, UN Doc A/HRC/49/87, 12 August 2022 Report of the Independent Fact-Finding Mission on Libya, UN Doc A/HRC/50/63, 31 August 2022 Report of the Independent Fact-Finding Mission on Libya, UN Doc A/HRC/52/83, 20 March 2023 Opinion adopted by the UN Working Group on Arbitrary Detention, Opinion No. 66/2022 concerning Zayn al-Abidin Muhammad Husayn (Abu Zubaydah) (United States of America, Pakistan, Thailand, Poland, Morocco, Lithuania, Afghanistan and the United Kingdom of Great Britain and Northern Ireland) UN Doc A/HRC/WGAD/2022/66, 6 April 2023 (advance edited version) Report following the Technical Visit to the United States and Guantánamo Detention Facility by the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, 14 June 2023 Interim report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Alice Edwards, UN Doc A/78/324, 24 August 2023 United Nations Legislative Series Book 25: Materials on the responsibility of States for Internationally Wrongful Acts (2023, 2nd edition) UN Resolutions UN Security Council Resolution S/RES/218(1965), 23 November 1965, territories under Portuguese administration UN General Assembly Resolution 3314 (XXIX), 14 December 1974, Definition of Aggression UN Security Council Resolution S/RES418(1977), 4 November 1977, arms embargo against South Africa UN Security Council Resolution S/RES/569(1985), 26 July 1985, sanctions against South Africa UN General Assembly Resolution A/RES/ES-11/1, 2 March 2022, Aggression against Ukraine PROEF PS Joelle Trampert.job_08/28/2024_140A 280 UN General Assembly Resolution A/RES/ES-11/4, 12 October 2022, Territorial integrity of Ukraine: defending the principles of the Charter of the United Nations UN General Assembly Resolution A/RES/77/97, 7 December 2022, Responsibility of States for Internationally Wrongful Acts UN General Assembly Resolution A/RES/77/247, 30 December 2022, Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem ILC output 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Yearbook of the International Law Commission 2001, Vol. II(2), 26 (ASR). Text reproduced as it appears in the Annex to UN General Assembly Resolution 56/83 of 12 December 2001 and corrected by UN Doc A/56/49(Vol.I)/Corr.4 Draft Articles on Responsibility of International Organizations, with Commentaries. Yearbook of the International Law Commission 2011, Vol. II(2), 40 (ARIO) Draft Articles on Prevention and Punishment of Crimes Against Humanity, with Commentaries. Report of the International Law Commission 2019, Chapter IV, 11 (DACAH) UN Doc A/74/10 ILC Yearbooks ILC Yearbook 1949, Vol. I ILC Yearbook 1958, Vol. II (Third report of Special Rapporteur García Amador) ILC Yearbook 1961, Vol. II (Sixth report of Special Rapporteur García Amador) ILC Yearbook 1970, Vol. II (Second report of Special Rapporteur Ago) ILC Yearbook 1972, Vol. II (Fourth report of Special Rapporteur Ago) ILC Yearbook 1978, Vol. I ILC Yearbook 1978, Vol. II(1) (Seventh Report of Special Rapporteur Ago) ILC Yearbook 1978, Vol. II(2) ILC Yearbook 1980, Vol. II(2) ILC Yearbook 1996, Vol. II(2) ILC Yearbook 1999, Vol. I ILC Yearbook 1999, Vol. II(1) (Second report of Special Rapporteur Crawford) ILC Yearbook 2000, Vol. II(2) ILC Yearbook 2001, Vol. II(1) ILC Yearbook 2001, Vol. II(2) ILC Yearbook 2015, Vol. II(1) (First report of Special Rapporteur Murphy) ILC Yearbook 2019, Vol. II(1) n/a, see UN Doc A/CN.4/752 (Fourth report of Special Rapporteur Murphy) PROEF PS Joelle Trampert.job_08/28/2024_140B 281 UN Doc A/CN.4/748 (Comments and observations received from Governments) Draft Conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens)), with Commentaries. Report of the International Law Commission 2022, Chapter IV, 11 (Draft Conclusions on jus cogens) UN Doc A/77/10 CoE documents Council of Europe/European Court of Human Rights, Guide on Article 3 of the European Convention on Human Rights, Prohibition of torture, updated 31 August 2023 Council of Europe/European Court of Human Rights, Guide on Prisoners’ rights, updated 31 August 2023 EU documents Council of the EU, User’s Guide to Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment 12189/19, 16 September 2019 NGO reports and news items Shawan Jabarin, General Director of Al-Haq, open letter to the Dutch Minister of Foreign Affairs and the Minister for Foreign Trade and Development Cooperation regarding the export of Dutch service dogs to Israel, 6 November 2015 Forensic Oceanography, ‘Mare Clausum, Italy and the EU’s undeclared operation to stem migration across the Mediterranean’, affiliated to the Forensic Architecture agency, Goldsmiths, University of London, May 2018 Amnesty International and Omega Research Foundation, ‘Ending the Torture Trade – the Path to Global Controls on the “Tools of Torture”’, 11 December 2020 Human Rights Watch, ‘A Threshold Crossed – Israeli Authorities and the Crimes of Apartheid and Persecution’, 27 April 2021 – ‘“That’s When the Nightmare Started” – UK and US Forced Displacement of the Chagossians and Ongoing Colonial Crimes’, 15 February 2023 – / Giulia Tranchina, ‘Italy Reups Funding to Force Migrants Back to Libya’, 1 February 2023 ICRC Commentaries and studies Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume 1: Rules (CUP 2005) ICRC Commentary to Geneva Convention I (2016) ICRC Commentary to Geneva Convention III (2020) National reports and news items The Netherlands Advisory Committee on Public International Law (CAVV) Advisory report No. 35 on the provision and funding of “non-lethal assistance” to non-State armed groups abroad’, 25 June 2020 – Advisory report No. 41 on the legal consequences of a serious breach of a peremptory norm: the international rights and duties of states in relation to a breach of the prohibition of aggression, 17 November 2022 EMJ Ploumen, ‘Brief van de Minister voor Buitenlandse Handel en Ontwikkelinsgsamenwerking’ Kamerstuk 22054 No. 276, 24 June 2016 PROEF PS Joelle Trampert.job_08/28/2024_141A 282 The United Kingdom House of Lords and House of Commons Joint Committee on Human Rights, ‘Allegations of UK Complicity in Torture’, Twenty-third Report of Session 2008-09, HL Paper 152 HC 230, 4 August 2009 The United States of America Report of the US Senate Select Committee on Intelligence, ‘Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program’ with Foreword by Chairman Feinstein and Additional and Minority Views, S. Rept. 113-288, 9 December 2014 Web pages and miscellaneous European Council and the Council of the European Union on EU migration and asylum policy, ‘Migration flows on the Central Mediterranean route’ <https://www.consilium.europa.eu/en/policies/eu-migration-policy/central-mediterranean-route/> Amnesty International, ‘Death Penalty’ <https://www.amnesty.org/en/what-we-do/death-penalty> Office of the High Commissioner for Human Rights, ‘UN Experts Warn of Associated Torture and Cruel Punishment: World Day Against the Death Penalty’ 10 October 2022 <https://www.ohchr.org/en/press-releases/2022/10/un-experts-warn-associated-torture-and-cruel-punishment> The Rendition Project, a research project co-directed by Professor R Blakeley at the University of Sheffield (previously the University of Kent) and Dr S Raphael at the University of Westminster at <https://www.therenditionproject.org.uk/> ‘Memorie van Grieven’ (in Dutch) in the F-35 case: <https://www.prakkendoliveira.nl/nl/nieuws/2024/inz-gaza-zitting-turbo-spoedappel-van-oxfam-novib-pax-en-the-rights-forum-over-beeindigen-f-35-wapenexport-aan-israel-door-nederland-22-januari-2024>. I have saved a pdf copy. Government of the Netherlands, ‘State lodges appeal in cassation against judgment on distribution of F-35 parts to Israel’ <https://www.government.nl/latest/news/2024/02/12/state-lodges-appeal-in-cassation-against-judgment-on-distribution-of-f-35-parts-to-israel> Statement by South Africa welcoming the provisional measures ordered by the International Court of Justice against Israel, 26 January 2024, <https://dirco.gov.za/statement-by-south-africa-welcoming-the-provisional-measures-ordered-by-the-international-court-of-justice-against-israel/> PROEF PS Joelle Trampert.job_08/28/2024_141BState Responsibility for Complicityin and Other Contributions toInternational Crimes andSerious Human Rights ViolationsJoëlle A. TrampertJoëlle A. TrampertState Responsibility for Complicity in and Other Contributionsto International Crimes and Serious Human Rights Violations |
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