Responsibility in Connection with the Conduct of Military Partners

Forthcoming in Military Law and the Law of War Review

T.M.C. Asser Institute for International & European Law, Research Paper 2018-03

24 Pages Posted: 8 Mar 2018 Last revised: 22 Nov 2018

Date Written: March 1, 2018

Abstract

This article analyses situations in which States and international organizations partnering in military operations can bear responsibility in connection with conduct attributed to another. When engaging in military cooperation, a variety of international norms providing for obligations in relation to others should be taken into account. These include negative obligations not to assist or direct military partners in engaging in conduct violating international obligations, and positive obligations to take steps to ensure that military partners do not commit wrongful conduct. Taken together, they result in a framework which regulates military collaboration by determining thresholds where implication in the conduct of another, or lack thereof, engages responsibility. The aim of this article is to clarify and to conceptualise this framework, so as to provide an analytical background on the basis on which military officials can determine the proper balance between excessively permissive attitudes fostering violations and unnecessarily precautionary approaches hindering military cooperation. Based on a comprehensive review of relevant rules found in the ILC articles on the responsibility of States and of international organizations, international humanitarian law, and international human rights law, the article identifies four key criteria to allocate responsibility in connection with the wrongful conduct of military partners: knowledge, capacity, diligence, and proximity. In addition, the article offers some perspectives on the apportionment of legal consequences such as reparation.

Keywords: international law, responsibility, complicity, aid or assistance, derived responsibility, indirect responsibility, duty to prevent, duty to ensure respect

JEL Classification: K33

Suggested Citation

Boutin, Berenice, Responsibility in Connection with the Conduct of Military Partners (March 1, 2018). Forthcoming in Military Law and the Law of War Review; T.M.C. Asser Institute for International & European Law, Research Paper 2018-03. Available at SSRN: https://ssrn.com/abstract=3134459

Berenice Boutin (Contact Author)

T.M.C. Asser Instituut ( email )

P.O. Box 30461
2500 GL The Hague, 2517JN
Netherlands

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