Introduction
Partnered operations pose a distinctive humanitarian problem. Insofar as they increase the military might of parties to armed conflict, they also increase the exposure to danger of all those not taking part in the hostilities. Such a risk might seem no different from that entailed by any conflict involving powerful actors, but circumstances which are peculiar to partnered operations can aggravate the humanitarian consequences of war.
Firstly, in strategic decision-making, the possibility of pooling resources, technology and intelligence represents an incentive for military engagement, because it enhances the chances of military success while reducing battlefield exposure.Footnote 1 A similar incentive operates with regard to remote support to warring parties, which permits involvement on distant battlefields without incurring the economic and political costs of expensive military commitments opposed by reluctant domestic constituencies. The air, financial and logistical support provided by the US-led coalition to local forces against the so-called Islamic State group in Syria and Iraq, as well as the training provided by US troops to Ugandan forces to fight Al-Shabaab, are two examples of the increasing resort to techniques of remote warfare.Footnote 2 By multiplying the number of parties to the conflict and the interests at stake, both these incentives – i.e., the possibility of joining forces and the advantages of remote support – can fuel enmities and contribute to stalling negotiations, ultimately prolonging hostilities.Footnote 3 Although external support to one party may hasten the end of the conflict, empirical studies show that when both sides receive military assistance from third-party States competing for influence, hostilities are prolonged.Footnote 4
Secondly, at the operational level, military partnerships may foster the proliferation of armed groups and weapons, especially in the case of remote support. This is what happened, for example, in the initial phase of the conflict in Syria, where the decision of some opposition groups to engage in a violent uprising was arguably influenced by the anticipated support of external actors.Footnote 5 While the proliferation of armed actors makes humanitarian dialogue more complex, the proliferation of weapons increases the scale of violence both during and after conflict.Footnote 6
Thirdly, on the battlefield, interoperability is more difficult to achieve when the number of partners grows, as their operating procedures and military cultures may diverge. Poor interoperability, inter alia, raises the likelihood of targeting mistakes and may hinder the accomplishment of missions.Footnote 7 Beyond technical issues, aspects related to communication between coalition forces and political will are believed to be the cause of interoperability failures in Afghanistan and Iraq.Footnote 8 Taken together, all these circumstances compound the humanitarian situation of civilians and others not engaged in the fighting.Footnote 9
In addition to all that, partnered operations present a specific legal challenge, which can in turn bring humanitarian consequences. The higher the number of partners and the more intricate the allocation of tasks, the harder it is to assess State and individual responsibility for violations of the applicable law.Footnote 10 This may lead to a number of negative outcomes, ranging from a feeling of diffused responsibility which facilitates misconduct to actual accountability gaps. Even more worryingly, it may induce a preference for opaque arrangements by partners interested in blurring the consequences of their actions. Since these humanitarian and legal challenges are clearly intertwined, they have recently been made the object of a common response: prominent projects, including the Support Relationships in Armed Conflict Initiative (SRI) launched by the International Committee of the Red Cross (ICRC),Footnote 11 propose to leverage military partnerships in order to improve partners’ compliance with the law applicable in armed conflict.
While most of the research in this field has focused on the influence that States may have on partners’ behaviour, less attention has been paid to the measures that States adopt to ensure that their own conduct complies with international law when engaging in partnered warfare. The ICRC's study on “support relationships”, entitled Allies, Partners and Proxies: Managing Support Relationships in Armed Conflict to Reduce the Human Cost of War, partly fills this gap. It identifies ten areas in which practical measures can be adopted by actors in support relationships, with a view to maximizing compliance with international humanitarian law (IHL) and reducing negative humanitarian consequences. Among these practical measures, a key role is played by those intended to build “internal readiness” to engage in support relationships and “internal oversight” to ensure accountability for the State's own forces. Both internal readiness and internal oversight depend on the adequacy of the supporting party's own legal and policy framework. The ICRC's study thus acknowledges the significance of domestic laws and policies as well as of case law for improving IHL compliance in support relationships.Footnote 12 But how can the effectiveness of national legal and policy frameworks be evaluated?
This paper argues that the effectiveness of domestic law, case law and policies in maximizing compliance with the law applicable to partnered operations hinges greatly on the way domestic and international law interact – i.e., on the mechanisms used by States to implement international norms into their national legal systems. The paper therefore maps relevant practice in the national implementation of international law in this field, with the aim of assessing, based on a comparative analysis of different models, the benefits and shortcomings of distinct implementation mechanisms in addressing the humanitarian challenges raised by partnered warfare. In doing so, and in consideration of available national practice, the study refers to “partnered operations” as an umbrella concept that largely overlaps with that of support relationships.
After providing a definition of partnered operations, the following section introduces the research by outlining the international legal framework considered in the analysis. The third section constitutes the core of the inquiry: it reviews the national law, case law and policies of selected States, namely the United States, the United Kingdom, Denmark, Germany and Italy, chosen for their current or recent involvement in partnered operations and for the availability of relevant sources. The fourth section proposes to use the ICRC's SRI framework to evaluate the effectiveness of implementation measures, based on their ability to prevent or mitigate the risk of humanitarian consequences posed by partnered warfare. It submits that national laws and policies are the most effective implementation mechanisms for mitigating the humanitarian costs of partnered operations, while domestic case law does not provide a reliable basis for guiding State conduct. The final section offers some concluding remarks.
Setting the scene: The international legal framework of partnered operations and mechanisms for its national implementation
In recent years, legal and political scholars have used a variety of expressions such as “military assistance”,Footnote 13 “remote warfare”,Footnote 14 “proxy wars”Footnote 15 and “surrogate warfare”,Footnote 16 with slightly differing meanings but one element in common: the involvement of a multiplicity of actors with different roles in a military operation. As mentioned in the introduction to this paper, the ICRC has lately introduced the notion of “support relationships”.Footnote 17 The present paper refers to “partnered operations” as an umbrella concept which, while largely overlapping with the notion of support relationships, better reflects existing practice in the national implementation of international norms in this field.
Partnered operations considered in this paper include all instances where States contribute to a partner's military operation. This definition is general enough to include arrangements as diverse as joint combat operations, troop contribution and embedding, training, advice and assistance (including in force generation), detainee transfer, provision of weapons and equipment, intelligence-sharing, logistical support and financing.Footnote 18 Yet, it incorporates one condition that delimits its scope: the contribution must be to a military operation. This excludes military cooperation which is not directed at realizing one (or a series of) specific military operation(s) (e.g., routine arms transfer, military exercises) as well as cooperation taking place outside of armed conflict (e.g., security sector assistance in law enforcement). Partnered operations thus defined include partnerships both between States and between States and non-State actors (i.e., armed groups and private military companies). Moreover, the definition does not require that all members of a partnered operation be parties to the conflict: remote contribution may take place without meeting the thresholds of armed conflict under IHL, but in this case at least the recipient of the assistance must be a party.Footnote 19 Finally, jus ad bellum considerations should not impinge on the qualification of an operation as a partnered operation: for example, peacekeeping missions and collective self-defence operations may both come under the purview of our definition, provided all other conditions are met.
The definition proposed is therefore very similar in scope to, although narrower than, the notion of support relationships adopted by the ICRC. The latter focuses on support which “increases the capacity of a party to conduct armed conflict” and includes (in addition to partnered military operations) political support, arms transfers (including outside of operations) and other forms of support such as institutional capacity-building.Footnote 20 The present paper, instead, zooms in on State conduct which contributes to a partner's military operation in order to reflect a relative homogeneity in national practice in this area, leaving aside forms of political support and institutional capacity-building that partly escape the complex legal framework of partnered operations.
Although not a recent phenomenon, partnered warfare has never been as common as it is today. The ICRC has observed that “as the number of actors and conflicts has grown, it has become the norm for actors to work towards their strategic objectives in partnership with other actors”.Footnote 21 This makes it all the more important to understand the international legal framework applicable to partnered operations and to identify which implementation mechanisms are used by national institutions to comply with it.
In international law, partnered operations as defined in this paper are governed by a “network of rules on complicity” which reflect the complexity and variety of the phenomenon.Footnote 22 These include both primary norms laying down “obligations connected to the conduct of others” and secondary rules on State responsibility deriving from “collaborative conduct”.Footnote 23 The most relevant and far-reaching primary norm is the obligation to “ensure respect” for IHL, set out in Article 1 common to the four Geneva Conventions and customary law.Footnote 24 Although it applies to States in their relations with all parties to a conflict, the duty to ensure respect “is particularly strong in the case of a partner in a joint operation”, who is in a position to effectively influence the behaviour of others.Footnote 25 Such a duty is composed of a negative obligation to refrain from encouraging or assisting violationsFootnote 26 and a positive obligation to take proactive steps to bring the parties to a conflict to an attitude of respect for IHL.Footnote 27 It may be worth recalling that common Article 1 also applies to cooperation between States and non-State armed groups.Footnote 28 Primary norms applicable to partnered operations are to be found also in international human rights law (IHRL). First, the customary principle of non-refoulement acts as a limitation on the transfer of detainees between partners, including when it takes place within the territory of one State.Footnote 29 Second, according to the Human Rights Committee, States have a duty “not to aid or assist activities undertaken by other States and non-State actors that violate the right to life”.Footnote 30 It can be added that the Arms Trade Treaty prohibits the transfer of conventional arms when a State Party has knowledge, at the time of authorization, that they would be used in the commission of international crimes, or when there is an overriding risk that the arms could be employed to commit serious violations of IHL and/or IHRL.Footnote 31 These norms also apply to weapon transfers in the context of partnered operations. Finally, although the present survey focuses on the law applicable in armed conflict, it may be useful to mention that, under jus ad bellum, the definition of aggression includes two forms of partnered operations which violate the prohibition on the use of force: placing territory at the disposal of another State for perpetrating an act of aggression, and sending non-State armed forces which carry out acts of aggression against another State.Footnote 32
Primary norms are complemented by a series of secondary rules that provide for State responsibility arising from the conduct of another State or non-State actor.Footnote 33 They are of immediate relevance to partnered operations and can be identified by reference to the International Law Commission's (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).Footnote 34 In particular, Articles 16 and 17 introduce two forms of “derived” responsibility, respectively for “aid or assistance to” and for “direction and control over” the commission of a wrongful act by another State. Under Article 41(2), no State shall “render aid or assistance” to another State in maintaining a situation created by a serious breach of a peremptory norm. Finally, under Article 8, which is the only norm of the ARSIWA applicable to partnerships between States and non-State actors, the conduct of a group of persons “directed or controlled” by a State shall be considered an act of that State.
States have grown progressively more aware of the above-mentioned legal framework and of the risk of incurring responsibility for the wrongful conduct of their partners. This has prompted national legislatures, judiciaries and governments to act to ensure that relevant international norms are properly implemented in domestic legal systems.
Existing practice in national implementation
With a view to accounting for the variety of mechanisms available to States, this section examines, in turn, domestic legislation setting conditions for participation in partnered operations, national case law relying on international norms to settle domestic disputes, and official State policies adopted to orient the conduct of national institutions. It does not provide a comprehensive examination but rather focuses on the practice of selected States, chosen according to two criteria: their current or recent involvement in partnered operations relevant to our investigation, and the level of publicity of national implementation measures.Footnote 35 Both information on States’ involvement in partnered operations and the level of publicity of national measures (especially in the case of policies) ultimately hinge on a crucial condition: the transparency of State conduct in a field that, if anything, stands out precisely for its frequent resort to elision and secrecy.
The following subsections bring into focus the national law, case law and policies of the United States, the United Kingdom, Denmark, Germany and Italy, carrying out, wherever possible, a comparative analysis between different models. The comparison will consider, in particular, the scope of military engagements covered and the international legal framework that each national measure seeks to implement. Norms of IHL, IHRL and State responsibility (as formulated in the ARSIWA) will be considered. Conversely, the analysis will not take into consideration implementation and monitoring mechanisms provided by international sources, since they fall outside the scope of the research.
Domestic legislation providing conditions for participation in partnered operations
At the legislative level, States’ attitudes towards compliance with international law in partnered operations can generally be divided into three approaches. The first is the adoption of specific legislation making assistance in military operations contingent on the recipient's respect for fundamental international norms. The second is the explicit inclusion of partnered operations among military commitments that national law subordinates to compliance with international law. The third is to leave the matter unaddressed.
The first case is exemplified by what is likely the best-known piece of domestic legislation on human rights compliance in military assistance: the US Leahy Law. Since US foreign military assistance comes from two sources, the Department of State (DoS) budget and the Department of Defense (DoD) budget, the Leahy Law consists of two statutory provisions. One was permanently incorporated into the US Foreign Assistance Act in 2008;Footnote 36 the other is enclosed in the annual funding legislation of the DoD.Footnote 37 The version amended in the Foreign Assistance Act reads as follows:
(a) IN GENERAL – No assistance shall be furnished under this Act or the Arms Export Control Act to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.
(b) EXCEPTION – The prohibition in subsection (a) shall not apply if the Secretary determines … that the government of such country is taking effective steps to bring the responsible members of the security forces unit to justice.
Two crucial aspects explain the significance of the Leahy Law: (1) it applies at unit level, and (2) withholding of assistance is triggered by one single instance of gross violation of human rights (GVHR). These choices make it a (potentially) effective tool not only for avoiding complicity in human rights violations, but also for influencing partners and coaxing them into fighting impunity by addressing specific cases of human rights violations. Accordingly, the Leahy Law requires the secretary of State to assist recipient governments in bringing those responsible to justiceFootnote 38 and, if measures are taken, it allows assistance to be reinstated. Yet, two clarifications are needed to appreciate the real potential of the Leahy Law. As to the first aspect and on the positive side, the focus on individual units does not hinder consideration of the overall human rights situation in the recipient State, as another section of the Foreign Assistance Act prohibits assistance to “any country the government of which engages in a consistent pattern” of GVHRs.Footnote 39 However, a severe limitation concerning the second aspect restricts the scope of application of the law. The US government considers GVHRs to include conduct such as torture, extrajudicial killing, enforced disappearance, rape under colour of law, and other flagrant denials of the right to the life, liberty or security of persons. This list is not exhaustive, and other types of incidents can be examined.Footnote 40 As made explicit in the DoS implementation guidance,Footnote 41 the law applies equally when the same violations are committed in the context of an armed conflict. Yet, and decisively, the DoS and DoD do not consider civilian harm that occurs during the conduct of hostilities in a conflict as a GVHR.Footnote 42 This is a striking restraint which curtails the potential of the Leahy Law to effectively implement international norms applicable to partnered operations and makes it necessary to assess the role of national policies in complementing it.Footnote 43
Turning to enforcement, the Leahy Law seems to receive extensive applicationFootnote 44 and is implemented through an elaborate procedure known as “Leahy vetting”, which is based on both the government's information and independent reporting by non-governmental organizations.Footnote 45 However, questions have been raised about the effectiveness of Leahy vetting, as since its enactment the United States has not discontinued assistance to armed and security forces whose human rights record is notoriously poor.Footnote 46 This might be explained in part by differences in the DoD version of the Leahy Law, which is more permissive with respect to action needed for the recipient to regain assistance (“corrective steps” are sufficient) and provides an option for the secretary of defence to waive the prohibition if “required by extraordinary circumstances”. Most importantly, it has been disclosed that the DoS itself has in the past adopted a restrictive interpretation of the provision, limiting the types of assistance falling under the purview of the Law to training.Footnote 47 This no longer appears to be the case, however, after it was clarified that the provision applies to “all forms of assistance, including training, equipment and other activities”.Footnote 48
Conversely, doubts raised about the application of the Leahy Law in cases of assistance provided to armed groups remain unanswered. When in September 2014 the US Congress passed legislation authorizing the DoD to “provide assistance … to appropriately vetted elements of the Syrian opposition”,Footnote 49 no definite assurance was given on its submission to Leahy vetting.Footnote 50 Given the DoD's understanding of the term “security force”, the Leahy Law has often been interpreted as applying only to State partners, although non-State recipients of assistance are subject to a “Leahy-like” process.Footnote 51 Indeed, in the case of assistance to the vetted Syrian opposition, it was the authorizing provision itself that set the minimum requirements for vetting, thus assuming that the Leahy process would not be routinely applied.Footnote 52
An alternative to legislation listing precise criteria for the authorization of military assistance is the adoption of general clauses making participation in partnered operations conditional on compliance with international law. One example is the Italian Law 145/2016, which allows participation in international missions “provided it takes place in accordance with … general international law, international human rights law, international humanitarian law and international criminal law”.Footnote 53 The enforcement of this condition is guaranteed by a mechanism of double parliamentary oversight. First, after the government decides on the participation of the Italian Armed Forces in an international mission, the Italian Parliament is called upon to pass a law that authorizes or denies authorization for the mission. The legal basis for the mission is one of the elements that the Parliament must take into account when deciding on the authorization.Footnote 54 Second, all international missions of the Italian Armed Forces are reviewed once a year in a special session of Parliament, which is required to confirm the authorization.Footnote 55
Again, some clarifications are useful to correctly define the scope of application of the norm and appreciate its effectiveness. “International missions” as defined by Law 145/2016 include a fairly diverse type of military commitments outside situations of “declared war”. They range from missions established under the auspices of an international organization, such as the United Nations or the European Union, to the sending of troops and assets abroad in the context of defence alliances.Footnote 56 Nonetheless, there is debate as to whether the law applies to the deployment of special forces as part of intelligence operations abroad, which is governed by a separate provision.Footnote 57 In addition, the law refers to participation in “exceptional humanitarian interventions” but leaves the notion undefined: in this case, compliance with international law becomes a rather flexible condition, whose application depends on the definition of humanitarian intervention and the interpretation of the international legal framework on the use of force.Footnote 58
A third possibility is that national legislation remains silent on the participation of armed forces in partnered operations. This may particularly be the case in common law systems, where statutory law does not exercise the same function as in civil law systems and where case law and policies play a more prominent role. In the UK, for example, the War Powers Convention requires the government to seek parliamentary approval before deploying troops abroad. Yet the Convention, which has only been developed in the last few years, does not define which types of military engagements are subject to approval, and its scope has been interpreted as being limited to offensive operations.Footnote 59 Consequently, it fails to capture precisely those sorts of military commitments which contribute to a partner's operation without being per se offensive in nature, such as the provision of training and logistical assistanceFootnote 60 and the use of drones in intelligence, surveillance and reconnaissance missions.Footnote 61 Moreover, two kinds of operations which usually involve offensive tasks are a priori considered to have a blanket exemption from parliamentary oversight: the deployment of special forcesFootnote 62 and the embedding of troops in the armed forces of another State.Footnote 63
Before moving on, it shall be remarked that the three pieces of legislation reviewed in this section are different in terms of the scope of engagements covered and the reference legal framework. Under both perspectives, the US Leahy Law seems to present a limited reach: its application is confined to military assistance to States, leaving out all instances of direct operational engagement, as well as (likely) any form of assistance to non-State actors. Moreover, violations considered for withholding assistance are only those amounting to GVHRs, to the exclusion of violations of IHL of the conduct of hostilities. At the other end of the spectrum, the Italian Law 145/2016 adopts a broader approach, as it applies to participation in any type of international mission (with narrow exceptions), ranging from direct operational engagement of Italian troops to the mere sending of assets.Footnote 64 In this case, the reference legal framework includes all relevant sources (general international law, IHRL, IHL, international criminal law). Finally, the material scope and reference framework of the UK War Powers Convention is more difficult to define, given its nature as an unwritten source. As it stands, the Convention seems to be applicable to situations that are complementary to those addressed by the Leahy Law, since it covers only offensive engagements. Unfortunately, no legal parameter for parliamentary approval is explicitly defined, leaving it to each session of Parliament to independently assess the standards of legality of offensive missions.
National case law on armed forces’ contribution to partnered operations
Regardless of the existence of implementing legislation, disputes may be brought before domestic courts over the involvement of national institutions in partnered operations and their compliance with national and international norms. When this happens, depending on the specificities of the national legal system and the prior adoption of (general or specific) implementing legislation, national courts may be in a position to either apply international law directly or refer to international norms in their reasoning. In the field of partnered operations, this has occurred multiple times. Some examples are provided below.
German courts have dealt with partnered operations in at least two cases. In June 2005, the German Federal Administrative Court granted the appeal filed by a major of the Armed Forces who had disobeyed superior orders by refusing to work on military software.Footnote 65 He motivated his refusal with concerns that his actions might contribute to Germany's participation in attacks on Iraq, which he personally believed to be unlawful under international law. In deciding the case, the Court had to examine the plaintiff's objection of conscience in light of international norms applicable to Germany's assistance to UK and US forces. Assistance included “overflight rights for military aircraft” and “permission for the sending of troops and the transport of weapons and military supplies to the war zone from German soil”.Footnote 66 The Court relied extensively on international law, inter alia Article 16 of the ARSIWA and Article 3(f) of the Definition of Aggression,Footnote 67 and concluded that “grave concerns in international law exist about the conduct of the federal government”.Footnote 68 In the judgment, as observed by one author, the Court referred to the ILC rule on complicity even though primary norms on the use of force would have been sufficient to reach a decision.Footnote 69
The opposite occurred in a recent case in which three German courts ruled on Germany's involvement in US drone operations. The complaint was filed by Yemeni citizens who claimed that their right to life was unlawfully threatened by US drone strikes relayed through the US airbase in Ramstein, Germany.Footnote 70 After the Administrative Court of Cologne had dismissed the claim on the merits,Footnote 71 in March 2019 the Higher Administrative Court for North Rhine-Westphalia overruled the decision by applying a stricter legal standard.Footnote 72 It first held that whether Germany had a duty to protect the right to life of foreigners abroadFootnote 73 was a question to be solved by reference to applicable international law.Footnote 74 On that basis, it found that the German government had two positive obligations, which it had inadequately fulfilled: a duty to investigate whether US drone strikes in Yemen were conducted in accordance with international law (to the extent that they involved the use of German territory), and a duty, if necessary, to take the measures it deemed appropriate to work towards compliance with international norms.Footnote 75 Interestingly, this time the Court expressly ruled out that Article 16 of the ARSIWA had any relevance to the case and relied exclusively on IHL primary norms to determine the scope of international obligations binding Germany.Footnote 76 Eventually, in November 2020 the Federal Administrative Court overturned the ruling and restored the first-instance judgment.Footnote 77 Lowering again the standard demanded by primary norms, the Court concluded that diplomatic efforts made by the German government and legal guarantees given by the US administration sufficed to ensure the compliance of drone operations with international law.Footnote 78 The overruling was possible precisely because both courts ignored the possibility of State responsibility for complicity. Comparison between the two cases thus suggests that a comprehensive assessment of primary and secondary norms applicable to each case, albeit redundant, could help domestic courts to correctly identify the issues at stake and avoid accountability gaps.
An extreme alternative is the decision of the Danish High Court (Eastern Division) in the Operation Green Desert case, issued in June 2018.Footnote 79 The dispute concerned a joint military operation conducted by British, Danish and Iraqi forces in southern Iraq in 2004, during which thirty-seven Iraqi nationals were arrested, detained and ill-treated at the hands of Iraqi military and security forces. No Danish troops had taken part in the apprehension, detention and abuse of the plaintiffs, nor had they exercised control or command over the Iraqi forces; thus, the violations of Article 3 of the European Convention on Human Rights (ECHR) suffered by the plaintiffs could not be attributed to Denmark. Nevertheless, the Court affirmed Denmark's responsibility because the Ministry of Defence and the Armed Forces should have known, when they decided to join the operation, that there was “a real risk that persons detained during the operation would be subject to inhuman treatment in Iraqi custody”.Footnote 80 The decision stands in stark opposition to those of the German courts, not only for the very far-reaching stance on responsibility,Footnote 81 but especially because the Danish High Court, although referring to Article 3 of the ECHR, decided the issue purely under domestic tort law, ignoring the international legal framework applicable to the operation.Footnote 82
Finally, it should be remarked (unsurprisingly) that not only lawmakers but also courts have sometimes tried to avoid dealing with government determinations regarding involvement in partnered operations. Avoidance strategies traditionally rely on the political nature of governments’ foreign policy decisions and are reflected in the “act of State” or “political question” doctrine. In the Noor Khan case, for example, the Court of Appeal of England and Wales rejected the claimant's complaint concerning the killing of his father in a US drone strike in Pakistan, which had allegedly been planned on the basis of “locational intelligence” provided by British officers.Footnote 83 Before UK courts, the claimant had sought a declaration that British citizens in similar cases would not be entitled to the international law defence of combatant immunity. The Court of Appeal declared the issue non-justiciable, upholding the government's objection that any findings on the matters “would necessarily entail a condemnation of the activities of the United States”,Footnote 84 precluded by the “foreign act of State” doctrine. Three years later, however, the UK Supreme Court took the exact opposite stance in the Belhaj and Rahmatullah (No. 1) joined cases.Footnote 85 In both lawsuits, the claimants alleged that UK forces were complicit in their unlawful detention, torture and mistreatment at the hands of foreign authorities, to whom they had been transferred. Mr Belhaj and Mrs Boudchar were victims of an extraordinary rendition to Libya “arranged, assisted and encouraged” by UK officers; Mr Rahmatullah was captured by British forces in Iraq and transferred to US custody, remaining in detention without charges for ten years.Footnote 86 The Supreme Court ruled that no strand of the foreign act of State doctrine applied to the cases. Most importantly, it found that, even if engaged, the doctrine would be subject to a public policy exception for violations of peremptory norms of international law.Footnote 87 Interestingly, the Court did not revert the Noor Khan judgment: it confirmed that the foreign act of State doctrine had been correctly applied in that case.Footnote 88 Yet, as one author pointed out, what was missing in Noor Khan was precisely a thorough examination of the circumstances justifying the public policy exception.Footnote 89
Compared to the very diverse types of engagements covered by the national laws reviewed in the previous subsection, the case law examined here stands out for consistently referring to remote forms of assistance, ranging from logistical support to detainees’ transfer, to a general contribution to a partner's mission. Conversely, the legal framework considered by national courts is very diverse. Courts in the same country seem to come to opposite conclusions as regards both the applicable international norms and the legal standards of review. German courts have alternatively used secondary rules on responsibility and primary norms of IHL; even when agreeing on the applicable law, courts at different stages of the proceedings have applied different standards of review. In addition, courts in different countries have disagreed on the general reference framework, resorting alternatively to IHL, IHRL and State responsibility norms. This wide range of options and, perhaps even more so, the reversals of lower court decisions by higher courts show a degree of uncertainty about the applicable legal framework, which may be motivated by the relatively new definition of a clear legal framework for partnered operations.
State policies guiding the conduct of national institutions in partnered operations
State policies are not commonly included in the analysis of national measures adopted by States to comply with international obligations. The reasons for this are, first, that policies are not binding, and second, where specific implementation obligations exist, they can only be fulfilled by enacting domestic legislation. This, however, does not rule out a role for State policies in ensuring that national institutions respect applicable international norms. Hence, this subsection considers administrative acts which, having been officially adopted by the executive branch, provide a reliable expectation of compliant behaviour. Consideration of State policies is not unusual in the practice of international institutionsFootnote 90 and will prove useful for completing the overview of national implementation models.
One country that stands out in developing policy guidance for its armed and security forces engaged in partnered operations is the United Kingdom. This may be partly motivated by the prominent role of policy and executive documents in common law systems. Two documents are relevant to our inquiry. Their history is instructive, as both had been in operation for some time before being released to the public domain in response to growing demands for transparency about foreign assistance programs. The first document is the Overseas Security and Justice Assistance Guidance (OSJA Guidance),Footnote 91 which was published in 2011 following allegations that the UK had been providing assistance to authoritarian regimes in the Middle East and North Africa before the outbreak of the Arab Spring.Footnote 92 The OSJA Guidance, last updated in 2017, has a broad scope of application, as it concerns all kinds of justice and security sector assistance provided by the UK to other States. It also covers assistance to foreign armed and security forces in the framework of armed conflict and applies to both capacity-building and “case-specific assistance” (thus falling within the scope of our survey). A second document with a narrower focus had been available since 2010: the Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees (updated in 2019 and renamed the Principles).Footnote 93 It was published following a lawsuit by the legal charity Reprieve, filed after reports of British involvement in the US rendition programme.Footnote 94 Both documents serve a dual goal. Firstly, they seek to avoid complicity in the wrongful conduct of a partner – in particular, to ensure that assistance is consistent with international human rights obligations and that IHRL and IHL risks are mitigated,Footnote 95 and to prevent participating in, soliciting, encouraging or condoning unlawful killing, torture or cruel, inhuman or degrading treatment, and extraordinary rendition.Footnote 96 Secondly, they aim to influence partners by strengthening compliance with IHRL and IHLFootnote 97 and promoting human rights in countries with which the UK deals.Footnote 98 Unfortunately, despite such a positive general stance, the assessment and approval mechanism designed into both documents are obviously limited in scope: since these are policy (i.e., non-legally binding) documents, even when there is a serious risk of contributing to IHL or IHRL violations, they do not block assistance but only require that decision-making is referred to senior personnel or ministers, who can ultimately give authorization.Footnote 99 This certainly hampers the ability of both documents to strengthen compliance and casts serious doubt on the possible use of policies as a means to relax legal limitations. To further nuance the assessment of policy initiatives in the field of partnered operations, it should be added that to date the UK government has refused disclosing its Guidance to Intelligence Officers and Service Personnel Applicable to the Passing of Intelligence relating to Individuals Who Are at Risk of Targeted Lethal Strikes. Requests made under both the Freedom of Information ActFootnote 100 and parliamentary oversightFootnote 101 have so far been unsuccessful.
Another country which has made efforts to clarify its policies on involvement in partnered operations is the United States. As in the UK, US policy is also fragmented across multiple documents, but unlike the UK, in the case of the US national policies do not compensate for the absence of national legislation; rather, they complement it. Again, the centrality of policy documents, even on matters of armed conflict, should come as no surprise, given the role of policies in common law systems. This holds true both when national legislation remains silent on issues that are left to the appreciation of the courts and the regulation of the executive, and when the law regulates a matter only selectively. Indeed, one reason for resorting to policy-making is that the scope of the US Leahy Law is limited to military assistance which may foster GVHRs: it leaves out both instances of direct operational engagement and assistance which results in violations of IHL of the conduct of hostilities.Footnote 102 These instances are thus addressed in national policies. At least two initiatives deserve to be mentioned in this regard. Since 2016, the US administration has released an unclassified portion of its Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force, whose complete version is submitted to Congress every year.Footnote 103 The document includes a section on “Working with Others in an Armed Conflict”, covering activities such as “training, provision of materiel, intelligence sharing, and operational support”.Footnote 104 It explicitly acknowledges that the US partners with non-State actors, if this furthers US interests. It states that the administration can take measures “including diplomatic assurances, vetting, training, and monitoring” to ensure that the recipient of intelligence respects human rights and the law of armed conflict, but it then recalls the Leahy Law only by reference to partner countries. In any case, the framework reiterates the commitment to “promoting compliance by U.S. partners with the law of armed conflict”, in line with common Article 1. Indeed, although the United States rejects an “expansive interpretation” of common Article 1, it accepts that the obligation to “ensure respect” entails a commitment to verifying partners’ compliance with the law of armed conflict when assessing the lawfulness of military assistance and joint operations.Footnote 105 A second example is provided by the Policy on Pre- and Post-Strike Measures to Address Civilian Casualties, adopted by the US administration in December 2016. The Policy comprises a commitment to “engage with foreign partners to share and learn best practices for reducing the likelihood of and responding to civilian casualties, including through appropriate training and assistance”.Footnote 106 Successive editions of the Annual Report on Civilian Casualties in Connection with United States Military Operations have also accounted for the measure of US reliance on local partners for offensive operations in several theatres.Footnote 107
It seems possible to draw a few conclusions from a comparison of the two sets of documents discussed above. On the one hand, when compared in terms of the scope of engagements covered, the UK and US policy documents appear to be complementary, in that the former concern remote support that does not involve direct operational engagements, while the latter apply precisely to operational support. On the other hand, and unlike both the law and case law reviewed in previous subsections, the policy documents examined here are notable for their reference to both IHL and IHRL as sources of international legal standards.
Leveraging national implementation to address the humanitarian challenges of partnered operations
As shown in the previous section, the international law of partnered operations is implemented in national legal systems through a variety of mechanisms, which can be combined to address separate aspects of military partnerships. The national practice examined above also suggests that different implementation mechanisms – law, case law and policies – have been used for distinct purposes, leading to varying results. This leaves room for an evaluation of their effectiveness, provided it is done according to one of several aims that States may pursue through national implementation. An assessment in general terms would be impractical for two reasons: first, there is insufficient data to assess how formal implementation translates into actual compliance, mainly due to lack of transparency on State conduct in this field;Footnote 108 and second, the choice between legislative, judicial or policy measures (or no specific measure) will ultimately depend on the peculiarities of each national legal system. By way of example, judicial implementation of international law generally represents a positive development, but its effectiveness in incorporating international norms differs, depending on the different role that international law plays in common law and civil law systems – not to mention the possibility that national judiciaries are influenced, to varying degrees, by political considerations. Similarly, officially adopted policies, although not binding, can be so deeply embedded in the daily practices of political and military decision-makers that they alone can guarantee fully compliant behaviour. More radically, where international law is routinely incorporated in domestic legal systems and national institutions consistently comply with it and operationalize it, specific implementation measures may be unnecessary. For these reasons, this paper refrains from indicating one universal model, based on the conviction that there is no one-size-fits-all solution.
A concern highlighted at the outset of this investigation is that partnered operations raise a peculiar humanitarian problem, insofar as they may exacerbate the suffering and exposure to danger of civilians and others not engaged in the fighting. One option is thus to evaluate the effectiveness of implementation measures according to their potential to prevent or mitigate the risk of humanitarian consequences posed by partnered operations. This can be done by adopting the framework of analysis proposed by the ICRC in its recent study on how to manage support relationships in armed conflict to reduce the human costs of war (SRI framework).Footnote 109 The difference in scope between the two notions of “partnered operations” and “support relationships”, as explained in the second section of this article, should not be an obstacle: since the former is entirely contained within the latter, all instances of partnered operations considered in the examination of national practice do amount at the same time to support relationships as defined by the ICRC, and the SRI framework is equally relevant to them. It should be additionally mentioned that the purpose of the SRI framework is to appraise practical measures that actors in support relationships can take to maximize compliance with IHL, whereas the legal framework considered in this paper is broader, also including national measures implementing IHRL norms and the secondary norms of State responsibility. Even this should not be an impediment to using the ICRC's study as a framework for assessing the effectiveness of implementation measures, however – in fact, all legal and policy measures reviewed above seek to prevent or mitigate the humanitarian consequences of partnered operations, thereby serving the ultimate purpose of the SRI framework.
Bearing that in mind, the ICRC's study divides practical measures into ten functional groups arranged in three stages: preparation, implementation and transition. The framework, therefore, is particularly helpful for our analysis because it reflects the “operations process” adopted by many armed forces and defence alliances.Footnote 110 Observations made here can thus be easily integrated into the planning, execution and assessment of military operations by State forces. When reviewed in light of the ICRC's SRI framework, national law, case law and policies each play a distinctive role in maximizing compliance with the law applicable in armed conflict. Nevertheless, they intervene at different stages of partnered operations and have a different prospective impact on the humanitarian consequences of those operations.
Law and policies are relevant for the preparation phase: they affect what the SRI framework identifies as an actor's “internal readiness” to engage in a partnered operation, as they set the rules under which the operation will be conducted. Consequently, they are crucial for two reasons: first, they represent minimum standards and thresholds against which States decide whether to engage in a partnered operation, and second, they are the benchmarks according to which the operation will be planned. Hence, they have a greater potential to prevent and mitigate the risk of humanitarian consequences entailed by the operation. This consideration should, however, be nuanced in light of some features revealed by the analysis of national legislation in the previous section of this article. Interestingly, both the US Leahy Law and the Italian Law 145/2016 include vaguely worded provisions, relying on constructive ambiguity. The Leahy Law lacks definitions for “assistance” and “security force of a foreign country”: these shortcomings have been used in the past to limit its scope of application to training, and are used today to exclude assistance to non-State armed groups from Leahy vetting.Footnote 111 Law 145/2016, meanwhile, is noncommittal on its application to special forces operations and makes an unclear reference to “exceptional humanitarian interventions”, leaving the notion undefined. A comparison of these two statutes therefore shows that neither specialized legislation nor all-embracing clauses are exempt from loopholes, and both might be circumvented through selective interpretation. The same may be true, to an even greater extent, for national policies. As the British example shows, policies provide governments with a flexible tool for ensuring compliance with international norms while avoiding binding commitments. In common law systems, they are a standard means of replacing or complementing deficient national legislation. They can also be helpful in achieving legal interoperability. Yet, for precisely the same reasons, governments may use policies as a means of relaxing applicable legal standards, which end up being balanced by foreign policy considerations.
National case law performs an equally crucial but distinct function. It can come into play either when national implementing legislation has been breached, to restore proper implementation, or when national legislation has not been adopted at all, to replace it and sanction non-compliant institutions by direct reference to international norms. It intervenes at the implementation stage of the adopted framework, aiming to ensure “internal oversight” of government decisions and armed forces’ conduct in partnered operations. As pointed out in the ICRC's study, internal oversight “is particularly important when it comes to actors or operations that are intentionally excluded from normal reporting procedures for security reasons, such as missions conducted by special forces or intelligence services”.Footnote 112 In this way, the judiciary may be instrumental in closing interpretive loopholes intentionally left in national laws and policies. For this reason, case law has emerged in recent years as a promising development, marked by an increase in strategic litigations.Footnote 113 Yet, judicial decisions may have less impact on the humanitarian challenges of partnered operations for three reasons. First, as noted above, they relate to the implementation phase, not the planning stage. They are essential for redressing the plight of victims, not for avoiding their suffering in the first place. Of course, their findings may be integrated into lessons learned and may help in the planning of future operations. However, and second, practice reviewed in this paper indicates that decisions on matters of military partnerships have been easily reversed, as is typical of a field which is still developing. Finally, it should be noted that frequent judicial reversals result in a condition of unpredictable State responsibility. While this does not call into question the contribution of national judiciaries to the implementation of international law, taken together these observations do explain why national authorities may consider domestic case law as a less reliable basis for planning partnered operations.
Conclusions
In his keynote speech at the 110th Annual Meeting of the American Society of International Law, Brian Egan, then legal adviser to the DoS, recognized that one of the reasons why the United States complies with the law of armed conflict is that “it is essential to building and maintaining our international coalition”.Footnote 114 Indeed, when assessing the international legal framework of partnered operations, it should not be forgotten that States have recently paid attention to national implementation not only to avoid responsibility, but also because the capacity of coalitions to respect the law of armed conflict supports their legitimacy, strengthens the ties between partners, and ultimately increases their chances of success. These non-legal reasons contribute to explaining why compliance with international law in partnered warfare is gaining prominence and further prove the relevance of the topic that this paper has sought to address.
By reviewing the national law, case law and policies of selected States involved in partnered operations and chosen for the accessibility of relevant sources, this paper has explored the role that national implementation mechanisms can play to prevent or mitigate the risk of humanitarian consequences inherent in partnered operations. It has refrained from indicating a universal model for national implementation, mindful of the limitations proper to every mechanism, of the significant differences between national legal systems, and, above all, of the lack of sufficient data for assessing how formal implementation translates into actual compliance. Yet, the survey of relevant practice suggests at least that a strategy to alleviate the risk of humanitarian consequences in partnered operations should take into consideration the different effectiveness of law, case law and policies – i.e., the different impact they bear on distinct phases of partnered operations. If this is done, a general call for national implementation of international law in this field does not appear to be sufficient. Conversely, engagement with States should privilege advocacy of national implementation laws and policies as highly effective mechanisms for guiding the planning and preparation of partnered operations. This seems even more relevant when one considers that most of the efforts made so far towards fostering compliance with international law have been directed at initiating strategic litigations, often with little result. While this may be linked to a certain degree of uncertainty in the applicable legal standards, typical of a field that is still consolidating its premises, national legislation remains the preferred option for trying to prevent or mitigate the humanitarian consequences of partnered operations.
