- States often assist each other in armed conflicts and in counterterrorism operations. This assistance can take many forms, for example the loan of airbases, the exchange of intelligence information and the strengthening of the capacity of armed forces. This paper considers the implications of such assistance under international law.
- This is not an academic paper and does not seek to address every nuance of this area of the law. Rather, it offers a practical perspective on the issues, illustrated with topical examples drawn from armed conflict and counterterrorism. For those who prefer not to dive into the legal complexities, the paper provides a self-contained final chapter, recommending strategies and policies to be adopted by governments that are considering the provision of assistance to states or non-state armed groups.
- The law in this area includes a general rule set out in Article 16 of the International Law Commission’s Articles on State Responsibility, which provides that a state that aids or assists another state in the commission of an internationally wrongful act by the recipient state is internationally responsible, where certain conditions are fulfilled. The paper clarifies the application of these conditions, including the difficult issue of what degree of knowledge or intent engages the responsibility of an assisting state under Article 16.
- There are also specific rules of international law that are relevant to state-to-state assistance in armed conflict and counterterrorism situations, including under international humanitarian law and international human rights law. These typically impose stricter requirements on assisting states than the general rule in Article 16. The paper examines the relationship between the general rule and these specific rules. It also considers the application of relevant rules to assistance by states to non-state armed groups.
- The final chapter of the paper highlights the importance of governments carrying out thorough enquiries before they provide assistance to other states, so that they can assess in advance the risks of cooperating in an act that may be internationally wrongful. Once the risks have been identified, states need to put in place strategies to reduce and mitigate these risks. Such strategies might include attaching conditions to assistance; vetting and training recipients of assistance; and monitoring and following up on any risks identified.
- Greater transparency is needed about the assistance that states provide to one another, and to non-state groups. This applies both to the factual information surrounding the assistance and to the assisting state’s understanding of the applicable legal framework, particularly where allegations of breaches of international law are concerned.