Joint and several liability for the Halabja attack: Dutch businessman to pay compensation for delivery of mustard gas to Saddam Hussein

 Posted by: Nollkaemper André

On 24 April, the District Court of the Hague in the Netherlands ordered Frans van Anraat, a Dutch national, to pay compensation to 17 victims of chemical weapon attacks by the regime of Saddam Hussein in 1988. The judgment raises interesting questions from a shared responsibility perspective, as Van Anraat obviously only was one of many contributors to the eventual injuries.

The case was brought by 17 survivors of the 1988 attack on the Kurdish city of Halabja in Iraq, in which an estimated 5,600 civilians were killed. Saddam Hussein ordered the Halabja attack as part of a crackdown on a Kurdish rebellion in the north, during the final months of the war with Iraq.

In the 2007 judgment in the criminal trial, the Court had found that Van Anraat was Iraq’s sole supplier of a chemical substance used in the production of mustard gas. He had claimed that he believed the chemical was to be used in the Iraqi textile industry. The Court rejected that argument in the criminal trial, saying that he knew the chemicals might well be used for war crimes. Van Anraat is now serving a prison sentence in the Netherlands.

In the present judgment, the Court dealt with the separate question of liability. It found on the basis of the applicable law of Iraq that Van Anraat had acted wrongfully vis-à-vis the plaintiffs. It rejected, also on the basis of Iraqi law, the defense based on the statute of limitations, and ordered Van Anraat to pay each survivor €25,000.

The practical impact of the judgment may be limited, as Van Anraat is believed to be out of funds. But the holding that a person who contributed to international crimes is potentially not only criminally liable, but can also be sued for damages, may be an important precedent for future cases.

The facts of the case raise fascinating questions of shared responsibility. For whatever may be proven in terms of knowledge and conduct of Van Anraat, it is clear that there was a multiplicity of actors who contributed to, or committed, the attack in Halabja. These actors include the state of Iraq, Saddam Hussein himself, and other persons part of his regime. This argument that Van Anraat’s role was marginal compared to these others was indeed raised by the defense.

The Court rejected this, and found Van Anraat to be jointly and severally liable. It relied on an expert report by Haider Hamoudi (University of Pittsburgh). Hamoudi informed the Court that under Iraqi law, compensation for any intentional, wrongful act was due if three elements were established: fault, harm and a causal link between the fault and the harm. The key question for the Court concerned the third element, the causal link ‘in particular in cases where there are two or more potential wrongdoers who have caused the fault’. On this point, Hamoudi wrote that ‘the general rule is one of joint and several liability in the case of two or more causes of fault’, only subject to an exception when the causal link between fault and harm is broken because of the act of a third party. Hamoudi concluded on the facts that ‘Iraqi law would regard the defendant in this case jointly and severally responsible for damages owed to the Iraqi victims.’

The Court followed this analysis. In response to Van Anraat’s argument that he did not commit a wrong since it was not him who had produced the mustard gas, the Court held that Van Anraat knew, when delivering the chemicals to the Hussein regime, that the weapons would be produced and used. And, crucially, that his delivery was an essential part in the causal chain. That being so, the exception to the rule of joint and several liability (that is: the situation when the causal link as between fault and harm is broken because of the act of a third party) did not apply, and there was sufficient basis to hold Van Anraat liable.

The judgment raises many prospects and questions. What is the relationship between joint and several liability and the eventual determination of the amount of compensation? Would Van Anraat have, under Iraqi law, recourse to other wrongdoers (the state of Iraq?). And what impact would the award of damages may have in a (perhaps hypothetical) future case where other contributors are brought to court – whether at the international or national level. These questions call for further consideration. But as it is, the judgment is a fascinating example of the power of joint and several liability in cases of multiple wrongdoers.

Providing weapons to Syria: a situation of shared responsibility?

 Posted by: Nedeski Nataša

The continuing conflict in Syria has raised many questions of shared responsibility (see, for example, here and here). This blog post will discuss the issue of the provision of weapons and other military equipment to Syria.

In June this year, Human Rights Watch urged governments and companies around the world to stop signing new contracts (and evaluate existing contracts) with arms suppliers that are providing weapons to the Syrian government, such as the Russian firm Rosoboronexport, and suggested that those providing weapons to the Syrian regime could be regarded as being complicit in the crimes committed by the Syrian army. According to a recent report of the Independent International Commission of Inquiry on the Syrian Arab Republic, these crimes could include crimes against humanity and war crimes. The Chair of the Independent Commission has said that there are ‘grounds to believe that Government forces and the Shabbiha committed war crimes, gross human rights violations and crimes against humanity’ and that similarly, ‘anti-Government forces committed war crimes, including murder, extrajudicial executions and torture’.

Rosoboronexport is not the only actor outside Syria accused of providing material support to Bashar Al-Assad’s regime. On 4 September, the New York Times reported that Iran has resumed shipping military equipment to Syria through Iraqi airspace. According to United States intelligence, it is likely that these planes are carrying weapons and military equipment. Last March, Iranian flights through Iraqi airspace were stopped for some time after Iraq was requested to do so by the United States. However, when these overflights resumed in July, Iraq accepted Iranian assurances that its airplanes carry only humanitarian aid and allowed them passage through its airspace without any form of inspection.

A series of UN Security Council resolutions have imposed an arms ban on Iran, and the latest in line ‘calls upon’ all States to inspect cargo to and from Iran in their territory if the State in question has reasonable grounds to believe it contains prohibited items. The US claims that Iraq has an obligation under these resolutions to inspect the cargo of Iranian planes that are suspected of flying arms to Syria, and accuses Iraq of allowing Iran to transport weapons to Syria through its airspace. These accusations have been reiterated in a Western intelligence report disclosed on 20 September by Reuters. This report states that large quantities of Iranian weapons have been transported to Syria through Iraq, allegedly thanks to an agreement between senior Iraqi and Iranian officials.

Iraq has rejected all accusations, and reported last week that it has denied permission to a North Korean plane to pass through Iraqi airspace because of suspicions that it was carrying weapons to Syria. In addition, an Iraqi government official was quoted this Sunday as saying that authorities will conduct random inspections of Iranian airplanes heading for Syria on suspicion that they might be carrying weapons.

Should the cargo transported by Iranian planes in fact consist of weapons or other military equipment, such material support could be used by the Syrian army to commit gross human rights violations against the Syrian population. While at this point we can do no more than speculate as to what it is these planes are carrying, the facts and allegations cited above raise a range of questions on the possible responsibility of actors that provide support to Syria. Can such actors be regarded as aiding or assisting the internationally wrongful act(s) committed during this conflict?

Reports have drawn attention not only to the support provided to the Syrian regime, but also to the support that opposition forces in Syria have received from actors outside Syria. This allegedly includes military support from Saudi Arabia, Qatar and Turkey, as well as support from the US, France and the UK (which has somewhat curiously been referred to as ‘non-lethal’ assistance). It should be noted that the general rule on aid or assistance in international law deals only with the responsibility of a State providing aid or assistance to another State. It remains a somewhat troubling lacuna that support to opposition forces, at least as a matter of general international law, will not easily engage the responsibility of supporting states for aid or assistance. Of course, it could be argued that States providing support to the Syrian opposition are acting in violation of international law, for example because such conduct is not in accordance with the principle of non-intervention.

For the States that provide support to the Syrian government the legal situation appears to be different. Article 16 of the ILC Articles on State Responsibility (ASR) provides that 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 a) that State does so with knowledge of the circumstances of the internationally wrongful act; and b) the act would be internationally wrongful if committed by that State. In its commentaries, the ILC further clarifies that knowledge of the circumstances of the wrongful act is not sufficient; a State is only responsible for aid or assistance if it intended to facilitate the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State.1)

It is apparent that there are several hurdles to be crossed before responsibility for aid or assistance can be established. In its commentaries to the ASR the ILC has stated that a State may be held responsible if it ‘provides material aid to a State that uses the aid to commit human rights violations’, but only if it was ‘aware of and intended to facilitate the commission of the wrongful conduct.’2) Information about the situation in Syria is widely available, and ‘knowledge of the circumstances of the internationally wrongful act’ is arguably present. However, it is not clear how one would establish that Iran intended for its material support to be used to commit gross human rights violations in the absence of explicit pronouncements illustrating such intent. The intent-requirement has indeed been subjected to serious criticism due to the practical difficulties relating to the establishment of a State’s intent.3)

Another ambiguity relates to the question whether supportive conduct should reach a certain threshold in order to be qualified as aid or assistance. For example, should Syria have used the Iranian weapons for the commission of its crimes in order for Iran to be held responsible for aid or assistance? The ILC’s commentaries in this respect are contradictory. On the one hand, they provide that the aid or assistance need not have been essential for the performance of the internationally wrongful act, but rather require that it should have ‘contributed significantly to that act.’4) This implies that some (undetermined) form of causation should be taken into consideration. On the other hand, however, the commentaries simply state that aid or assistance need not be substantial but ‘may have been only an incidental factor in the commission of the primary act’, contributing ‘only to a minor degree, if at all, to the injury suffered.’5) This disparity makes it particularly difficult to indicate when supportive conduct will be considered as aid or assistance.

A different but related issue concerns aid or assistance provided to States that themselves provide aid or assistance to a wrongdoing State. Iraq’s role may, at least based on the above-mentioned allegations, be an example. Its role would be complicated, as it is not accused of actively providing weapons to Syria but rather of allowing such weapons to pass through its airspace without taking any action. The first question would be whether this conduct should be qualified as active support (which would be the case if Iraq were to give explicit permission for these overflights) or as support by omission.6) While it cannot be excluded that aid or assistance can take the form of an omission, the fulfilment of the requirements set out above in such a case would appear to be more difficult to establish. For example, it would have to be determined whether Iraq’s conduct was a conscious choice aimed at facilitating the transfer of weapons so that they may be used to commit gross human rights violations, or mere passivity (or even inability) lacking any form of intent whatsoever. Moreover, one may wonder whether Iraq should be considered as aiding or assisting Iran by allowing it to provide aid or assistance to Syria, aiding or assisting Syria in the human rights abuses of its people, or aiding or assisting both?

In view of the somewhat clouded nature of the principle of aid or assistance, the question should be considered whether we need at all to evaluate the legal position of, for example, Iran and Iraq in these terms. In a recent book chapter, Olivier Corten and Pierre Klein argue that we should resort to the concept of due diligence in many situations in which aid or assistance cannot be established because of its strict conditions of application7) (the Corfu Channel case and the Application of the Genocide Convention case are analysed to illustrate this argument).

Responsibility for a failure to exercise due diligence can be established without having to establish intent, as it requires only that a State knew or should have known that certain unlawful conduct was likely to occur. In such situations, a State should take those measures that are reasonably within its power to make sure that its territory is not used for activities contrary to the rights of others (in this case, the rights of the Syrian population and, if one were to argue that the Syrian conduct is in violation of an obligation erga omnes, the rights of all States of the international community), regardless of whether the State in question could in fact have prevented the unlawful conduct.

If one were to argue that Iraq knew or should have known of the possibility of Iranian airplanes carrying material support to Syria and of the risk that this support could be used to commit gross human rights violations, this would entail that Iraq is under the obligation to take measures within its power to prevent such unlawful conduct. These measures could reasonably include inspecting the cargo of airplanes that are suspected of carrying weapons and military equipment through its airspace. The same approach could of course be applied to Iran. In this respect one may think of a due diligence obligation of supporting States to make sure that their support is not used for the commission of internationally wrongful acts.8)

Should the international responsibility of all three States be established, it would still have to be determined if and how this responsibility should be shared: who can be held responsible for what, and what does this entail in terms of reparation? The multitude of questions raised by this situation once again illustrate the complexity and importance of the topic of shared responsibility in international law.

 

FOOTNOTES

• 1) International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,2001 (A/56/10), at 66 para. 5↑
• 2) Ibid., at 67 para. 9.↑
• 3) See, also for a defence of the inclusion of the intent-requirement in article 16 ASR, Helmut Aust, Complicity and the Law of State Responsibility (CUP, 2011) pp. 230-249.↑
• 4) Supra note 1, p. 66 para. 5.↑
• 5) Ibid., p. 67 para. 10.↑
• 6) See Georg Nolte & Helmut Aust, ‘Equivocal Helpers – Complicit States, Mixed Messages and International Law’ (2009) 58 International and Comparative Law Quarterly 1 at 10.↑
• 7) Olivier Corten & Pierre Klein, ‘The Limits of Complicity as a Ground for Responsibility: Lessons Learned from the Corfu Channel Case’ in Karine Bannelier et al (eds.), The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (Routledge, 2011) 315 at 316.↑
• 8) As argued by supra note 6 at 15.↑

Obligations of the UK in respect of a Pakistani national detained by the US in Afghanistan

 Posted by: Nollkaemper André

At Lawfare, Robert Chesney notes an decision of the UK Court of Appeals (Civil Division) of 14 December that raises interesting questions of shared responsibility. The case is Yunus Ramhmatullah v. Secretary of State for Foreign and Commonwealth Affairs et ano. The Court, by an opinion of the Master of the Rolls, held that a Pakistani man (Yunus Rahmatullah) held by the US military in Afghanistan may pursue a habeas corpus petition against the UK’s Secretary of State for Defence and for Foreign and Commonwealth Affairs.

Yunus Rahmatullah was captured in Iraq by British forces in 2004 and then transferred to US custody. In 2004 the US moved Yunus Rahmatullah from Iraq to Afghanistan. Despite the fact that a US Detainee Review Board determined in 2010 that the applicant was not an enduring security threat, he remains at Bagram, which, as noted by the lower court, was said to be ‘notorious for human rights abuses’. In May 2010, the applicant’s cousin learned that he was detained at Bagram, and filed the writ of habeas corpus that led to the present judgment.

The ‘SHARES’ aspect of the case is that under international law, the UK maintain obligations vis-à-vis Yunus Rahmatullah, even after he was handed over the US.

In case of Rahmatullah not being treated in conformity with the Geneva Conventions, both under the Third (Article 12) and the Fourth (Article 45) Geneva Convention, the UK had the obligation to take effective measures to correct the situation or request his return.

At the time, the UK certainly was aware of this obligation. To ensure US willingness to protect persons transferred by the UK to the US, and their return if so requested, in 2003 a Memorandum of Understanding was concluded between the UK and the US Governments. This provided that the transfer of persons will be implemented in accordance with the Geneva Conventions, that detainees transferred by the UK to the US would be returned to the UK without delay upon request by the latter, and that the rendition to territories outside Iraq of transferred detainees ‘will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power.’

The combined effect of the Geneva Conventions and the MoU, thus, is that the UK retained obligations vis-à-vis Yunus Rahmatullah, even after he was handed over the US. The UK retained the obligation to secure his return and through this end any breach of his rights at the hands of the power to which he had been transferred. In other words, these provisions both form the basis of a possible shared responsibility of the UK and the US, and a procedural means for the UK to avoid breaching its own obligations.

Based on these provisions, Yunus Rahmatullah now applied for a writ of habeas corpus – in effect asking the UK to exercise its rights under the Geneva Conventions and the MoU. The Secretary of State argued that Yunus Rahmatullah was under the  control of the US Government and that the writ  should be rejected.

The Court found otherwise. It held that in the light of the Geneva Conventions and the MoU, there was ‘a substantial case for saying that the UK Government is under an international legal obligation to demand the return of the applicant, and the US Government is bound to accede to such a request.’ It found that the Government had provided insufficient evidence to conclude that such action could not be effective.

Interestingly, the Court found it unnecessary (and ‘inappropriate’) to address the question ‘whether, by not taking that course, it might, conceivably, be said that as a result of the combination of Section 1 of the 1957 Geneva Conventions Act and Article 130 of Geneva III, the UK Government could be aiding or abetting a “grave crime”’ (the Court here presumably referred to Geneva III). The question may indeed be premature, but the scenario is not entirely unrealistic and indeed may induce the negotiation of  agreements such as the MoU in question that enable states to exercise their responsibility vis-à-vis detained persons.

The case illustrated how states, through the Geneva Conventions and, as added security, the MoU, ex ante make sure that they retain the rights necessary to perform obligations incumbent on them. In addition it demonstrates how responsibility may continue, even after control is transferred.