State Responsibility for the Misconduct of Partners in International Military Operations:General and Specific Rules of International Law

This report focuses on a number of foundational questions related to the division of responsibility between states and between states and non-state actors engaged in various kinds of military collaboration. When Danish forces collaborate with partners in international military operations, they are governed by a complex international legal framework, comprising both generally applicable rules and rules emanating from specialised regimes of international law, such as international humanitarian law and international human rights law. In order to determine the specific international legal requirements to be fulfilled by Danish forces in a concrete situation involving collaboration with a military partner, it is necessary to assess, first, whether that situation is governed only by the general rules (e.g. on state complicity) or whether rules under specialised regimes – possibly imposing stricter requirements – also apply. Secondly, it must be assessed precisely how Danish forces should act in accordance with the applicable rules so as to ensure that Denmark does not incur international responsibility under the particular circumstances. The aim of the present report is to provide Danish decision-makers with a comprehensive overview of the international legal framework underlying Denmark’s participation in international military operations with various kinds of partners. Moreover, the report offers an update on the international debate regarding the most central issues of particular relevance to international lawyers working in the field. Part I of the report deals with the general international legal rules concerning state responsibility for wrongful conduct of partners in international military operations, whereas Part II addresses rules emanating from specialised regimes of international law that are relevant in the same scenarios. As a common feature, both Parts I and II centre on a number of specific examples of mission scenarios which either have been or may become relevant when Danish armed forces contribute to international military operations. Above all, the report exposes a highly complex and to some extent controversial international legal landscape governing state responsibility for the misconduct of military partners. Against the background of the identified challenges, the authors recommend that Danish forces further develop risk assessment procedures to be incorporated as a central part of their collaboration with partners. Moreover, as a corollary to such risk assessment procedures, it is necessary to adopt adequate procedures for mitigating measures that may be employed vis-à-vis specific partners, such as, for example, training in applicable legal standards under international humanitarian law and international human rights law. In view of Denmark’s frequent participation in international military operations with different partners, the risk that Danish forces may become implicated in the international legal violations by others is real and by no means negligible. It is therefore in Denmark’s interest to devote further attention and resources – from decision-makers as well as practitioners and researchers in the field – to the continuous development and operationalisation of adequate procedures for risk assessments as well as accompanying mitigating measures to be employed when necessary in connection with partnered operations.

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