What responsibility do States that supply (i) weapons or (ii) other assistance to Russia have under international law?
Read the original on the Center for Civil Liberties website
Authors: Dr. Gregory P. Noone and Sindija Beta, PILPG
Abstract: This blog post looks at the responsibility of States under international law that supply weapons or other assistance to Russia. International law imposes various obligations on States, including under: (i) the law of neutrality, (ii) international humanitarian law, and (iii) the Articles on State Responsibility.
Introduction
Russia’s war on Ukraine has violated international law in several ways, including violations of the UN Charter, the Genocide Convention, and the Draft Articles on Responsibility of States for Internationally Wrongful Acts (“Articles on State Responsibility”).
Despite its numerous violations of international law, Russia has retained a few supporters in the international community. Belarus, China, Iran, and North Korea have all either already sent or are contemplating providing military aid to Russia in various forms.
As the international community continues to discuss and explore various bases for holding Russia accountable as a matter of international law, the conduct of States that have provided aid or assistance to Russia merits closer attention, and may itself amount to distinct violations of international law. This blog post explores and considers the various ways in which States supporting Russia’s war in Ukraine may themselves be in violation of international law. This is an important endeavor given that no established precedent exists for holding such States internationally accountable, despite various calls for accountability in conflicts preceding Russia’s war on Ukraine (e.g., the United States, France, and United Kingdom’s provision of intelligence, logistic, and military support to Saudi Arabian-led operations in Yemen).
While the illegality of Russia’s actions is relatively clear, the liability of aiding/assisting States varies depending on the lens and framework of international law that is sought to be applied as well as the manner and extent of support provided. In general, international law has multiple frameworks that impose a requirement on States to remain neutral. These frameworks include: (i) the law of neutrality, (ii) international humanitarian law, and (iii) the Articles on State Responsibility. As this blog post explains, while a strict reading of these frameworks could mean that a State that provides support to Russia has violated international law, in practice, holding States liable for this support is an enormous challenge.
Responsibility of third party States under the law of neutrality
In a formal sense, the armed conflict is currently only between Russia and Ukraine. While various States have condemned Russia’s actions, States providing material aid or support to Ukraine have been careful not to make themselves a party to the armed conflict. This section examines the extent to which international obligations on State supporters of Russia’s war can be derived from the law of neutrality.
There is no codified law or treaty called “the law of neutrality.” Rather, the law of neutrality is an old doctrine of international law which governs the relationship between States (known as belligerents) engaged in international armed conflicts (“IAC”) and those States that are at peace (known as neutrals).
The first codification of the law of neutrality can be found in Hague Conventions (V) and (XIII) of 1907, which both articulate that a neutral State may neither make its territory available for a belligerent nor provide a belligerent with war material of any kind (Articles 7 and 6 of Hague Conventions (V) and (XIII), respectively). Consistent with this, the First Geneva Convention of 1949 articulates that State supporters of a belligerent State like Russia may supply only humanitarian aid in order to maintain their neutral status.
As others have noted, States supplying military equipment to Russia would appear to be in breach of their obligations under the law of neutrality enshrined in the Hague Conventions. At first glance, the same applies to those States that provide weapons to Ukraine. However, the law of neutrality may provide a more nuanced approach to States providing material aid to Ukraine. Certain scholars have advocated for a qualified law of neutrality. Under this doctrine, States may discriminate in favor of the State that is a victim of aggression (as opposed to the aggressor State), while retaining their neutral status.
While generally, it may be difficult to determine which State is the aggressor, and the associated perception of subjectivity in designating a State as an aggressor is often associated with academic skepticism regarding the doctrine of qualified neutrality, Russia is unequivocally the aggressor in the context of its war on Ukraine. In fact, critics of the qualified neutrality doctrine have labeled the war against Ukraine a “game changer” that has led them to call for a “more nuanced position vis-à-vis qualified neutrality.”
In addition to qualified neutrality, it has been argued that the provision of aid/assistance to Ukraine is justified in light of the circumstances “precluding wrongfulness” (in other words, preventing a wrong being committed) as a matter of State responsibility, being justified as Ukraine’s self-defense or as a proportionate and lawful counter-measures in the face of Russia’s internationally wrongful conduct. It has even been suggested that States have an obligation to assist Ukraine as part of their duty to cooperate to bring breaches of peremptory norms of international law (erga omnes)to an end.
Unfortunately, the law of neutrality does not provide a distinct basis for holding States providing aid/assistance to Russia liable. Nonetheless, it has occupied a significant position in discussions regarding Russia’s war on Ukraine, in light of the aid provided by several countries to Ukraine. As set out above, theories of qualified neutrality and other bases establish that such State assistance to Ukraine do not violate neutrality.
Responsibility of third party States under international humanitarian law
The provision of weapons to Russia also has implications as a matter of international humanitarian law (“IHL”), which is the body of law that regulates the conduct of armed conflict.
The meaning of “becoming a party” to an international conflict under IHL
Under IHL, when a State becomes a party to a conflict (or a “co-belligerent”) there are certain rules and protections that automatically apply to it. Practically speaking, this means that its soldiers and military objects can be lawfully targeted anytime, anywhere, and with any amount of force. Party status also matters for the legal protection of individuals in an armed conflict, may influence the scope of individual obligations, and can be relevant in establishing international criminal responsibility for certain war crimes committed.
Finally, if a State becomes a party to an international conflict, it also helps determine whether or not a party is in breach of Common Article 1 of the Geneva Conventions, which stipulates that a State should not provide aid, assistance, or encouragement to another party’s IHL violations.
This is why it is important to determine if, and when, a State providing assistance to Russia would become a co-belligerent State in the conflict with Ukraine.
When does a State become a co-belligerent party to an international conflict?
It is important to note that the same action by a particular State will impact both the law of neutrality and IHL, but these are distinct and should not be conflated.
Generally speaking, a State’s act must form part of the hostilities or military operations that constitute the IAC for it to be considered a co-belligerent.
Whether or not States assisting Russia will qualify as co-belligerents depends on whether a State directly participates in hostilities alongside another State, understood as engaging in acts that have a “sufficiently direct connection to harm to the adversary.”
Some scholars argue that “the systematic or substantial supply of war materials, military troops, or financial support” to a State engaged in an IAC makes the supplying State a co-belligerent. However, this is a minority position, and it is fairly well established that “supplying arms, without more, [does] not have a sufficiently direct operational connection” with an IAC to qualify as co-belligerency.
Specific examples of what may make a State a co-belligerent include: (i) using force against Ukrainian airplanes to enforce a no-fly zone in cooperation with Russia; (ii) the provision of intelligence to Russia which forms part of concrete military operations, such as targeting processes; or (iii) providing territory as a launchpad for military operations by Russia.
By contrast, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) Appeals Chamber specifically held that “equipping” and “financing” an organized armed group does not internationalize an internal armed conflict. If that level of support is not sufficient to create an IAC, it cannot suffice also for co-belligerency. It is instructive that the US was not considered a party to World War II, despite its massive support for the Allies, until it entered the fight against Germany and Japan directly.
Therefore, it is unlikely that foreign States would be considered Russia’s co-belligerents simply because they have provided it with weapons. More is required. For example, direct participation in hostilities alongside Russia.
Responsibility of third party States under Articles on State Responsibility
What is State complicity?
The analysis of third-party responsibility for the provision of weapons or assistance would be incomplete without a discussion regarding State complicity. As explained by Valentina Coli, “complicity,” originally a criminal law concept, is a form of “knowing involvement of an international law actor in the wrongful act that can be attributed to another.”
State complicity and Articles on State Responsibility
The analysis of State complicity has been a subject of customary international law, and was ultimately codified upon the UN’s International Law Commission’s (“ILC”) adoption of the Articles on State Responsibility in 2001.
Under Article 16 of the Articles on State Responsibility, three conditions must be satisfied for a State to be held internationally responsible, namely:
the State providing aid or assistance must have knowledge that the conduct of the State it is assisting constitutes an internationally wrongful act;
the aid or assistance must be given with a view to facilitating the commission of such act; and
the completed act must be of a nature that it would have been wrongful had it been committed by the assisting State.
While some of these elements are straightforward, the analyses of others have proven to be more challenging. Aid and assistance have a broad meaning encompassing the provision of weapons, logistical and technical support, financial aid, as well as intelligence-sharing. Similarly, the requirement for a causal nexus is satisfied as long as the aid or assistance contributed materially to the wrongful act. The meaning of “internationally wrongful” under Article 3 of the Articles on State Responsibility, includes acts such as the commission of war crimes. The required element of “knowledge” under Article 16 has, however, proven to be quite complicated.
The ILC’s inconsistent positions on this issue are partially to blame – while Article 16 itself uses the term “knowledge,” in its commentary on the Articles on State Responsibility, the ILC has used terminology referring instead to “intent.” Broadly, academic doctrine and State opinion are split along these two lines, with one set advocating for a knowledge-based theory, while the other advances an intent requirement. Under the former view, a State is complicit for providing assistance or aid if it knows that the State that it is assisting would use such aid or assistance to commit internationally wrongful acts such as war crimes. In the latter view, a State can be complicit only if it provides assistance with the intention of facilitating the assisted State’s internationally wrongful conduct.
The position under Article 16 is supplemented by Article 41 of the Articles on State Responsibility, which prohibits State aid and assistance to the maintenance of situations created by a serious breach of a peremptory norm of international law (international law uses the term jus cogens for peremptory norms that cannot be breached). Examples of peremptory norms include a prohibition on a war of aggression, crimes against humanity, and genocide.
Relying upon the criteria set out in the Articles on State Responsibility, scholars have analyzed whether States such as Iran, Belarus, and China could be held complicit for providing aid or assistance to Russia. As a note of caution, such States only bear responsibility for their aid or assistance to the underlying unlawful Russian conduct and not for Russia’s unlawful conduct per se. This distinction entails that Ukraine may not be in a position to avail of countermeasures (which must be proportionate to the measures in question) against such States, and would be limited in terms of the reparations it could claim against them.
Contrary to the position of States assisting or aiding Russia, which may attract State complicity for internationally wrongful acts, States’ provision of aid or assistance to Ukraine in furtherance of Ukraine’s self-defense is unlikely to contravene Articles 16 and 41.
Conclusion
The issue of State responsibility for the provision of weapons, financial assistance, and materials implicates and cuts across several regimes of international law, as analyzed above.
Under the law of neutrality, State supporters of both Ukraine and Russia have the potential to be held liable for the provision of weapons or more direct support to either State. However, there is potential to explore the doctrine of qualified neutrality, along with other bases, to assert that States providing material support to Ukraine should not face the same liability, as Russia is the clear aggressor in this conflict. The scope of any such liability is not clear, as the law of neutrality has no distinct enforcement mechanism and it is likely that this approach would have to accompany a general argument that Russia has committed internationally wrongful acts.
As a matter of IHL, States supplying such assistance to Russia are unlikely to qualify as co-belligerents, and more direct participation from them would be required to meet this threshold. As far as State complicity under customary international law is concerned, the difficulties in interpreting and applying the “knowledge” or “intent” requirement of Article 16 of the Articles on State Responsibility continues to pose a challenge in holding States supplying aid or assistance to Russia complicit in internationally wrongful conduct.
Photo by Joshua Olsen on Unsplash