A/HRC/42/CRP.1
that situation.1458 Moreover, a State which knowingly aids or assists another State with a
view to facilitating the commission by the latter of an internationally wrongful act is
internationally responsible for doing so, provided that the act would have been wrongful if
it had been committed by the assisting State itself. 1459 Accordingly, States that knowingly
aid or assist parties to the conflict in Yemen in the commission of violations would be
responsible for complicity in the relevant international humanitarian law violations.
(a) Conclusion
916. As in many other conflicts, it appears that common Article 1 to the Geneva
Convention is not sufficiently considered by third States that are not directly involved in the
conflict in Yemen, in particular those that exert or may exert a specific influence on the
parties to the conflict. More specifically, it is questionable whether the United Kingdom,
the United States, France, and the Islamic Republic of Iran are taking all reasonable
measures to ensure the respect for international humanitarian law in Yemen.1460 The same
may be said for all States that transfer arms to the parties to the conflict in Yemen. With the
number of public reports alleging and often establishing serious violations of international
humanitarian law, no State can claim not to be aware of such violations being perpetrated in
Yemen. As evidenced in the reports of the Group of Experts, parties to the conflict in
Yemen have been committing violations that may lead to criminal responsibility for
numerous war crimes.
917. For the States party to the Arms Trade Treaty, the mere fact that the State party has
knowledge that the arms transfer would be used in the commission of war crimes in Yemen
would be sufficient for a breach of the treaty to be established. According to its Article 6
(3): “A State Party shall not authorize any transfer of conventional arms covered under
Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time
of authorization that the arms or items would be used in the commission of genocide,
crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks
directed against civilian objects or civilians protected as such, or other war crimes as
defined by international agreements to which it is a Party.”
918. For all States, including those that are not party to the Arms Trade treaty, arms
transfers to members of the coalition may trigger State responsibility in the sense that they
may violate the obligation of States to cooperate to bring to an end any serious breach of
international law, including serious violations of international humanitarian law.1461 In
certain cases, the provision of arms or logistic support to a party to the conflict could
amount to knowingly aiding or assisting the party in the commission of an internationally
wrongful act, hence making the state providing arms responsible for such act. 1462 This
would also expose individuals in such countries to the risk of criminal responsibility for
1458
International Law Commission Draft Articles on the Responsibility of States for Internationally
Wrongful Acts, Article 41(2), and the commentary thereto.
1459 International Law Commission Draft Articles on the Responsibility of States for Internationally
Wrongful Acts, Article 16, and the commentary thereto.
1460 See for example: Oona Hathaway, Alexandra Francis, Alyssa Yamamoto, Srinath Reddy
Kethireddy and Aaron Haviland, “Common Article 1 and the U.S. Duty to Ensure Respect for the
Geneva
Conventions
in
Yemen”,
Just
Security,
April
2018
(https://www.justsecurity.org/55415/common-article-1-u-s-duty-ensure-respect-geneva-conventionsyemen/).
1461 ILC Draft articles on the Responsibility of States for Internationally Wrongful Acts, article 41(1).
1462 ILC Draft articles on the Responsibility of States for Internationally Wrongful Acts, Art. 16; see
for example Alexandra Boivin, “Complicity and beyond: International law and the transfer of small
arms and light weapons”, International Review of the Red Cross, Volume 87 Number 859, September
2005 (https://www.icrc.org/en/doc/assets/files/other/irrc_859_boivin.pdf); Cordula Droege and David
Tuck, “Fighting together and international humanitarian law: Ensuring respect for the law and
assessing responsibility for violations (2/2)”, Humanitarian Law and Policy, October 2017
(https://blogs.icrc.org/law-and-policy/2017/10/17/fighting-together-international-humanitarian-lawensuring-respect-law-assessing-responsibility-violations-2-2/#_ftnref10).
220
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents