For the last three years, the UN Secretary-General has highlighted the need for states to take concrete steps to incorporate safeguards for protecting civilians in states’ partnered military and security arrangements in the annual report on the Protection of Civilians in Armed Conflict. In December of 2020, the American Bar Association Center for Human Rights, Center for Civilians in Conflict (CIVIC), and the UN Office for the Coordination of Humanitarian Affairs (OCHA) hosted a roundtable with member states, experts, and representatives from civil society to identify practical options for better protecting civilians based on leading state practice; to conceive of and exchange new ideas; and to recognize unresolved challenges and priority areas for further exploration. The session employed a purposefully broad definition of partnered arrangements that included any form of material support provided by a state to an organized armed group or state forces, and, as such, allowed for the inclusion of partnered military operations; training and equipping; logistical, intelligence, or financial support; and arms transfers.
The session opened with a summary and discussion of the legal obligations that bind states during partnered arrangements, ranging from provisions in the Arms Trade Treaty and Convention on Cluster Munitions to rules relating to the transfer of detainees. Participants noted that interpretation of some sources of treaty-based and customary obligations (such as articles 6 and 7 of the Arms Trade Treaty, Common Article 1 of the 1949 Geneva Conventions, and art. 16 of the International Law Commission’s Articles on State Responsibility for Internationally Wrongful Acts), along with relevant judicial opinions, continue to be debated among states and legal scholars alike. Participants reviewed some of the common challenges of developing international consensus on the specific scope of a state’s legal obligations vis-à-vis partners, especially those that hinge on threshold questions of knowledge and/or intent or assessment of risk. Even so, participants generally recognized the consistency across many sources of international law and jurisprudence of holding supporting states accountable where their support facilitated a partner’s unlawful conduct and they did not effectively mitigate this risk. Apart from concerns relating to compliance with international humanitarian and human rights law, certain participants also associated partnered arrangements with the problematic state practice of unlawfully resorting to the use of force in the territory of another state on the pretext of self-defense to counter terrorism, in possible violation of the UN Charter.
Throughout the remainder of the discussion, participants made reference to the benefits offered by security partnerships, to include the prospect of improved protections for civilians that might result from mutual oversight and shared practice. At the same time, the group was candid in describing the known risks involved with partnership, including but not limited to the risk of aiding or assisting in the commission of internationally wrongful acts. Presenters highlighted scholarship that draws a correlation between foreign interventions in internal armed conflicts and increased duration and intensity of conflict.
To diagnose the source and nature of risk, participants agreed that evaluating the past conduct or attributes of the supported party is important, but gaining a more complete understanding of the totality of risks involved in partnership (and how to address them) also depends on assessing the compatibility between supporting and supported parties in their approach to security operations and protection of civilians more generally. First, the extent to which the political and strategic interests of the parties align can have a bearing on the political tolerance for harm to civilians or the degree to which the one party can exercise leverage in the partnership on questions of civilian protection. As importantly, the extent to which the parties agree on the applicable legal framework and share a common interpretation of law and their respective obligations thereunder carries clear implications for protecting civilians. Finally, the risk of harm or even wrongful acts is aggravated by incompatible operations and tactics, or insufficient “interoperability” in approaches to civilian harm. Divergent or ambiguous command and control, variable degrees of transparency, incompatible systems of tracking or investigation, and even misaligned public engagement can compromise the ability of partners to mitigate risks and to respond to civilian harm when it occurs. One expert noted that multiple courts have rejected the notion that the provision of training is sufficient to alleviate the responsibility of sponsor states for the wrongful acts of their partners where assistance and misconduct continues after the provision of training.
While not diminishing the importance of addressing these sources of risk in terms of a state’s legal obligations, participants were eager to list the many political, strategic, and even ethical bases for doing so. For example, one contributor raised the empirical evidence of a correlation between security force abuses and the emergence of violent extremism.
None of the participants challenged the basis for addressing risk, or the importance of doing so, but many did call attention to specific, recurring, practical challenges in implementing risk-control measures. One member state representative cited the difficulty of accessing information in the assisted state or about the conduct of the assisted party that would be necessary for gauging capacity or even evaluating conduct, which is often seen as sensitive. Experts noted that it would be improper for an assisting state to continue to provide assistance to a partner where there are credible reports of unlawful acts by the partner and the partner is unwilling to provide information concerning the alleged unlawful acts. There was a broad consensus on the need to share information about the conduct of partners and for monitoring the use of arms provided to partners. Participants universally expressed skepticism about the ability of standalone training in the laws of armed conflict or human rights to have a measurable effect on a partner’s conduct where there is not strong political will and commitment to the protection of civilians and mitigation of civilian harm. At least one participant made note of the fact that these barriers, if not practically addressable, might give an assisting state pause when considering whether to provide any support to partner forces at all.
In spite of the challenges, participants made several recommendations for states, the UN, and civil society, and called attention to numerous promising areas of innovation and examples of good state practice, for example:
- Formulate clear policies for mitigating risk in partnered arrangements and establish regular dialogue on the best means to reduce such risk in formal and informal discussions (such as this roundtable) and Arria Formulas.
- Empower communities and independent civil society to serve as an effective means of public oversight and accountability for partnered arrangements, and as a complement to government institutions of oversight and accountability.
- Include partnered arrangements, as appropriate, within the scope of Presidential Statements, Reports by the Secretary General, and Reports to the Secretary General by UN Missions (e.g. the United Nations Assistance Mission in Afghanistan (UNAMA)).
- Examine recent practice of comprehensive compliance frameworks (e.g. the G5 Sahel), which seek to mitigate risk throughout the lifecycle of a partnership (force generation, training, doctrine, internal governance, and accountability structures) in ad hoc coalitions or other partnered arrangements.
- Draw lessons from the UN Human Rights Due Diligence Policy (HRDDP) and examine ways that a similar framework could be applied by states to their partnered arrangements.
- Consider the benefits of a shared code of conduct or set of guiding principles, akin to the Safe Schools Declaration.
- Examine prospects for improving tactical and operational “interoperability” through models of compatible approaches to civilian harm mitigation (e.g. joint protocols for investigating and reporting civilian casualties).
- Incorporate partnered operations and other arrangements in the scope of national policies on the protection of civilians.