Misreading Nicaragua: The German position on State responsibility in connection with arms exports

Published: 20 March 2020 Authors: Carl-Philipp Sassenrath and Stefan Talmon

In 2011, uprisings in Yemen sparked a complex political military crisis that has been ongoing ever since. Since March 2015, a coalition of Arab States led by Saudi Arabia has supported the Yemeni Government under President Abdrabuh Mansour Hadi in a conflict with the Houthi armed movement and other domestic and regional actors. The coalition, which is comprised of eight other Arab States, receives intelligence, logistical support and weapons from the United States and the United Kingdom. Other States are also reported to have sold arms to the conflicting parties. The Group of Eminent International and Regional Experts on Yemen, which was established in 2017 by the UN High Commissioner for Human Rights at the request of the Human Rights Council, concluded that all parties to the conflict have violated international law. In order to strengthen international accountability, the German Federal Government had lobbied for the establishment of the Group of Eminent Experts.

In their 2018 political agreement establishing a coalition government, the ruling parties in Germany set out their policy with regard to the conflict in Yemen and the export of arms as follows:

“With immediate effect, we will no longer allow exports to countries as long as they are directly involved in the Yemen war. The legitimate expectations of companies are protected, if they can prove that deliveries, which have already been approved, will remain exclusively in the recipient country. We also want to reach agreement on this restrictive export policy with regard to Yemen with our partners in joint European projects.”

Notwithstanding this agreement, German arms exports to States involved in the conflict in Yemen, especially Saudi Arabia and the United Arab Emirates, continued. This practice gave rise to several questions in parliament. The Federal Government was asked, for example, to what extent a State could be held responsible under international law for the military (armed) attacks of another State on the basis of it providing arms to that State, rather than on the basis of a State’s territory being used for the attack or the attack being attributed to a State’s regular armed forces. In its written answer, published on 19 November 2019, the Federal Government stated:

“The responsibility of a State under international law is based on rules of customary law, whose content is reflected, inter alia, in the project of the International Law Commission of the United Nations on the codification of the ‘Articles on State Responsibility’. According to these Articles, the international responsibility of States for military measures requires that the measures are contrary to international law and can be attributed to the State concerned. In international law, attribution is linked to the sphere of control and influence of the State concerned. What is important here is an overall assessment of the facts. The origin of the weapons used may also play a role in this assessment.”

The Federal Government’s position on the responsibility of States under international law is, at first sight, largely conventional: questions of State responsibility are governed by the “Articles on State Responsibility” (ASR), adopted by the International Law Commission (ILC) in 2001. Although not a treaty, the document is widely considered binding as a codification of customary international law. While this may not be correct for all articles, it is the case with regard to the articles alluded to in the Federal Government’s reply. Pursuant to Article 2 ASR, the international responsibility of States requires that the conduct in question, consisting of an act or omission, constitutes “a breach of an international obligation of the State” and “is attributable to the State under international law.”

In its reply, the Federal Government seized on the requirement of attribution in the Articles on State Responsibility and linked attribution to a nebulous standard of “sphere of control and influence”. There is, however, no such standard in the Articles on State Responsibility. Under the “control test” in Article 8 ASR, the conduct of a person or group of persons can only be attributed to a State if the person or persons are acting “on the instructions, or under the direction or control of, that State in carrying out the conduct.” This is a different standard to that suggested by the Federal Government, and the two do not necessarily overlap. According to the Federal Government, whether certain conduct is linked to a State’s sphere of control and influence depends on “an overall assessment of the facts”. It is not clear what role the provision of armaments may play in such an assessment. Even assuming that the total dependence of a State on the provision of weapons by another State may bring the former within the “sphere of control or influence” of the latter, this does not mean that the military measures of the former can be attributed to the latter. The ICJ held that a general situation of dependence and support would be insufficient to justify attribution of conduct to a State. What is required for the attribution of conduct under the Articles on State Responsibility is not that a State comes within an unspecified “sphere of control” of another State, but that a State exercises effective control over the actual conduct of the other State which is to be attributed.

The Federal Government was also specifically asked to what extent Germany as a country of production, origin and export of armaments was internationally responsible for Saudi Arabia’s military (armed) attacks on civilian objects such as schools and hospitals in Yemen. The Federal Government responded:

“In its judgment of 27 June 1986 in the case concerning ‘Military and Paramilitary Activities in and against Nicaragua’, the International Court of Justice [ICJ] stated that the actions of another actor cannot be attributed to a State unless the State exercises control over the actor in all fields. The Federal Republic of Germany does not exercise control over other sovereign States. As a country producing and exporting military goods, it is therefore not responsible under international law for military measures taken by the recipient States of these goods.”

The Federal Government referred to the standard of attribution developed by the ICJ in its Nicaragua judgment. According to the Federal Government’s reading of that judgment, attribution requires that the State “exercises control over the actor in all fields”. This reading of the case calls for two observations. First, while the ICJ’s Nicaragua judgment is one of the leading cases on State responsibility, it does not address the attribution to a State of conduct of another State, but is only concerned with the attribution of the conduct of non-State actors. The so-called “effective control” test developed by the ICJ in the Nicaragua case has found entry in Article 8 ASR, which deals with attribution to a State of the conduct of a private “person or group of persons”; that is, non-State actors. The parliamentary questions, however, concerned Germany’s international responsibility for Saudi Arabia’s military attacks on civilian objects such as schools and hospitals in Yemen. The attribution to a State of conduct of the organs of another State is not dealt with in Article 8, but rather in Article 6 and, possibly, Article 11 ASR. It is thus not at all clear that the standard of attribution developed by the ICJ in its Nicaragua judgment can be applied to inter-State relationships. The Federal Government seems to think it can. However, it overlooks that Article 17 ASR specifically provides for the responsibility of a State directing and controlling another State in the commission of an internationally wrongful act. There is thus no need for attribution or the Nicaragua test.

The second observation is that, even if the standard of attribution developed by the ICJ in its Nicaragua judgment were applicable to Saudi Arabia’s military conduct in Yemen, in its reply to the parliamentary question the Federal Government seems to have misrepresented that standard. The ICJ held in Nicaragua that for conduct to be attributed to a State,

“it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.”

The ICJ’s “effective control” test thus requires that the State exercises effective control over specific conduct – here the military attacks on civilian objects – not “control over the actor in all fields” or “control over other sovereign States”. The Federal Government’s statement may have been inspired by a misreading of an earlier passage of the Nicaragua judgment, where the Court said that “there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf.” This passage, however, is referring to a separate standard to the “effective control” test. Control “in all fields” is not a requirement for the attribution to the State of specific conduct of non-State actors, but rather a requirement for the treatment of non-State actors as de facto organs of the State. Once it has been established that a non-State actor qualifies as a de facto organ of the State, all its conduct is generally attributable to the State, irrespective of any effective control over the specific conduct in question. The threshold to prove that a non-State actor qualifies as a de facto organ of the State is correspondingly extremely high and difficult to establish. It seems that the Federal Government tried to postulate an unduly high standard of attribution in order to rule out, from the outset, any question of State responsibility for internationally wrongful acts committed by Saudi Arabia with German weapons in Yemen.

The Federal Government’s reply is also noteworthy for its omissions. Although asked in general terms “to what extent” Germany as a country of production, origin and export of armaments was internationally responsible for Saudi Arabia’s military attacks on civilian objects in Yemen, the Federal Government only focused on the question of attribution (Part One, Chapter II ASR) and did not touch upon its possible responsibility in connection with the acts of Saudi Arabia (Part One, Chapter IV ASR). If indeed Saudi Arabia had committed violations of international humanitarian law in Yemen, as found by the Group of Eminent International and Regional Experts on Yemen, the Federal Government should have addressed both the question of Article 17 ASR and whether by supplying weapons to Saudi Arabia, Germany aided or assisted that country in the commission of these internationally wrongful acts. With regard to the latter, Article 16 ASR provides:

“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

  • that State does so with knowledge of the circumstances of the internationally wrongful act; and
  • the act would be internationally wrongful if committed by the State.”

Germany’s responsibility for aiding and assisting Saudi Arabia in the commission of an internationally wrongful act turns on the question of whether the Federal Government is aware of the circumstances making the conduct of Saudi Arabia internationally wrongful. The ILC pointed out that the assisting or aiding State bears no international responsibility if it “is unaware of the circumstances in which its aid or assistance is intended to be used by the other State”. This may explain why the standard answer of the Federal Government to questions concerning violations of international humanitarian law by Saudi Arabia and its coalition partners was that it had no “own information”, or that it is “unable to comment” on  these events. In addition, the Federal Government responded to questions about any knowledge of the deployment of the arms delivered and the conduct by the Arab coalition forces in Yemen in one of the following ways:

“[T]he Federal Government points out that almost all military equipment mentioned in the report was delivered and the underlying licensing made before the escalation of the conflict in Yemen. […] The Federal Government has no information on a breach of the end-use certificates submitted.”

“The Federal Government is aware of the press coverage quoted. After careful consideration, the Federal Government has come to the conclusion that a more detailed answer to the question cannot be given publicly. The requested information is confidential because it contains information related to the working methods and methodology of the Federal Intelligence Service and, in particular, its reconnaissance activities and analysis methods.”

While ignorance is generally no excuse, in international law it helps to protect the State against any international responsibility for the acts of other States. The evasive answers with regard to Germany’s knowledge about the use of German weapons in Yemen indicate that the Federal Government is well aware of the requirements of responsibility for complicity.

The question of Germany’s responsibility for aiding or assisting other States in the commission of violations of international humanitarian law and international human rights by providing military hardware to these States is not limited to the conflict in Yemen. Similar questions may arise with regard to German arms exports to Turkey and the latter’s intervention in Syria and Libya. In international law, it is extremely difficult, if not impossible, to establish either direct or derived responsibility of a State on the basis of arms exports. There was thus no need for the Federal Government to misrepresent the law on State responsibility to establish an even higher threshold for such responsibility than already exists.

Category: State responsibility

 

Carl-Philipp Sassenrath

Carl-Philipp Sassenrath is a PhD candidate at the Institute for Public International Law of the University of Bonn. He studied law in Heidelberg and Münster and completed his legal clerkship at the Higher Regional Court of Berlin.

Prof. Dr. Stefan Talmon LL.M. M.A

Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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