A/HRC/42/CRP.3 and, to that end, maintains a list of dual-use goods and technologies, to which States are expected to apply export controls.59 (f) General rules of State responsibility 36. Under general rules of State responsibility and customary rules of international law a State is prohibited from aiding or assisting another State in the commission of an internationally wrongful act where three conditions are fulfilled: that the State organ or agency providing aid or assistance is aware of the circumstances making the conduct of the assisted State internationally wrongful; that the aid or assistance be given with a view to facilitating the commission of that act and actually does so; and that the completed act be such that it would have been wrongful had it been committed by the assisting State itself. 60 A detailed study of this rule determined that the test for aiding and assisting is whether the assisting State knew, or was virtually certain, that the assistance would be used for unlawful purposes.61 Aid or assistance is generally accepted as covering a broad range of activity and is not limited to acts of particular gravity.62 It may include not only the provision of material aid, such as weapons, but also logistical and technical assistance and financial support, such as export credit guarantees.63 Additionally, when a State engages in gross and/or systematic breaches of peremptory norms of general international law, other States must not render aid or assistance in maintaining the situation (even if the breach has ceased) and must cooperate to end, through lawful means, such “serious breaches”. 64 Peremptory norms of general international law include crimes against humanity, torture, genocide, racial discrimination and apartheid, and slavery.65 2. Responsible business policies and practices 37. Domestic and foreign companies engaging with the Tatmadaw should apply relevant international human rights principles and safeguards as a matter of the corporate responsibility to respect human rights. A foundational principle of the Guiding Principles is that business enterprises should respect human rights by avoiding causing or contributing to adverse human rights impacts, addressing those impacts when they occur, and seeking to prevent or mitigate those impacts that are directly linked to their business relationships, even 59 60 61 62 63 64 65 14 See Wassenaar Arrangement, “List of dual-use goods and technologies and munitions list”, December 2018. See Commentary to Article 16 of the Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001). The International Court of Justice (ICJ) has held that Article 16 had attained the status of customary international law. See, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) (2007) ICJ Rep 43, para 417 (hereinafter Bosnian Genocide case). For detailed analysis of the customary law status of Article 16, see Aust (2011), Complicity and the Law of State Responsibility, pp. 97–191. Harriet Moynihan, Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism, November 2016 (https://www.chathamhouse.org/sites/default/files/publications/research/2016-11-11aiding-assisting-challenges-armed-conflict-moynihan.pdf), paragraph 76. Miles Jackson, Complicity in International Law (Oxford University Press, 2015), p. 153; James Crawford, State Responsibility: The General Part (Cambridge University Press, 2013), p. 402; Helmut Philipp Aust, Complicity and the Law of State Responsibility, (Cambridge University Press, 2011), p. 239; Vaughan Lowe, ‘Responsibility for the Conduct of Other States’, Japanese Journal of International Law, 2002, pp. 5–6. Vladyslav Lanovoy, ‘Complicity in an Internationally Wrongful Act’, in André Nollkaemper and Ilias Plakokefalos (eds.), Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (Cambridge: Cambridge University Press, 2014), pg. 9. Article 41 of the Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001). The draft articles are generally accepted as authoritative interpretations of international law, including by the International Court of Justice, and also as generally reflecting customary international law. See, generally, Đorđeska, Marija. The Process of International Law— Making: The Relationship between the International Court of Justice and the International Law Commission. International and Comparative Law Review, 2015, vol. 15, no. 1, pp. 7–57. See Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001), para. 5 of the commentary to Article 26; and Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001), para. 4 of the commentary to Article 40.