Partnered Operations and the Positive Duties of Co-Parties

Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2022-10

Forthcoming in: Journal of Conflict & Security Law, vol. 27 (2022)

38 Pages Posted: 6 May 2022 Last revised: 10 May 2022

See all articles by Alexander Wentker

Alexander Wentker

Max Planck Institute for Comparative Public Law and International Law (MPIL)

Date Written: May 6, 2022

Abstract

A key issue in partnered operations is the extent to which partners have obligations under international law as regards each other’s conduct. For partnered operations in situations of armed conflict, this issue has generated a rich and vivid debate on the existence of a duty to ensure respect for international humanitarian law (IHL) by one’s partners, and in particular, whether this duty would require taking positive action. Rather than weighing in on the general question of whether all States bear such duties, this article sheds light on one aspect that this debate has tended to overlook. The article specifically looks at the situation in which multiple parties are engaged in the same armed conflict alongside one another against a common adversary—here labelled ‘co-parties’. It investigates which positive obligations these parties have as regards each other’s conduct. The central argument is that co-parties in an armed conflict have multiple complementary sets of duties to take positive steps vis-à-vis the conduct of their fellow co-parties. The resulting network of duties reflects the central role of the parties to the conflict to ensure that armed conflicts are carried out in accordance with the protective purposes of IHL. Built into the established structure of the legal framework regulating armed conflict, the account of the duties of co-parties presents a more refined conception to the allocation of obligations under IHL in cooperation settings, which, if implemented, may contribute to addressing the protection challenges raised by partnered operations.

Keywords: international humanitarian law, co-party status, positive duties, ensuring respect for international humanitarian law by others, due diligence, precautions

Suggested Citation

Wentker, Alexander, Partnered Operations and the Positive Duties of Co-Parties (May 6, 2022). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2022-10, Forthcoming in: Journal of Conflict & Security Law, vol. 27 (2022), Available at SSRN: https://ssrn.com/abstract=4101806 or http://dx.doi.org/10.2139/ssrn.4101806

Alexander Wentker (Contact Author)

Max Planck Institute for Comparative Public Law and International Law (MPIL) ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

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