A/HRC/43/35 prevent those that are foreseeable.111 A State should therefore refrain from assisting a party to an armed conflict in any way that might contribute to an international humanitarian law violation, for instance by providing military support to a partner State performing arbitrary arrests in joint operations, and should further strive to ensure respect for the law by taking every possible measure to induce that party to desist from committing violations. A State assisting a party to a conflict to commit international humanitarian law violations towards persons it detains – even outside the State’s territory – would be in breach of this obligation.112 35. Moreover, it is a general rule of customary international law that a State is internationally responsible for knowingly aiding and assisting another State in the commission of an internationally wrongful act, when the act would be internationally wrongful if committed by the assisting State itself.113 In assessing whether a State incurs responsibility for facilitating the violations by another State against persons detained outside the assisting State’s territory, a number of factors may be relevant, including the significance of the contribution of assistance – which can include the provision of intelligence, equipment, financing or technical support – towards a violation; the opposability of the violated international obligation to the assisting State; and the assisting State’s knowledge of the circumstances of the assisted violation, with that State being, at minimum, aware that the support provided would facilitate the commission of a violation. However, it has been advanced that the relevance of this last factor may depend on the gravity of the assisted violation: the more serious the violation, the lower the required knowledge threshold that would be appropriate. 114 In cases when the detaining State breaches a peremptory norm, for example, by systematically subjecting detainees to arbitrary detention or torture or violating their fundamental fair trial rights,115 an assisting State might be considered responsible for aiding and assisting in the commission of an international wrongful act even if it was not shown to have actual or near certain knowledge of the violation, on the basis instead of a presumption of knowledge.116 When assistance is provided to a non-State actor carrying out the detention and the aforementioned conditions have been met, international responsibility may likewise arise if that actor’s actions can be attributed to a State (see para. 30). V. Conclusions and recommendations 36. While there are situations that may require States to resort to extraterritorial detention, such measures bear a high risk of being implemented without the due protection of law, notably with respect to sufficiency of judicial oversight, with a commensurate impact on the integrity of the judiciary. Whether undertaken in the context of counter-terrorism or other law enforcement and intelligence operations, or during armed conflict, extraterritorial detention has often led to human rights violations such as arbitrary and unlawful deprivation of liberty, torture and other forms of ill-treatment. Furthermore, some States operating outside their borders have transferred to other States persons whom they detained without satisfying the substantive and procedural requirements of the principle of non-refoulement, thereby exposing these persons to real risks of human rights violations. In other cases, States 111 112 113 114 115 116 ICRC, Commentary on the First Geneva Convention, para. 164. Ibid., para. 160. Responsibility of States, art. 16; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, para. 420. Commentary on art. 16 of the articles on the responsibility of States for internationally wrongful acts (A/56/10, chap. IV.E.2); ICRC, Commentary on the First Geneva Convention, para. 160; Pacholska, Complicity and the Law of International Organizations, pp. 129–167; James Crawford, State Responsibility: The General Part (Cambridge University Press, 2013), p. 408; Stefan A.G. Talmon, “A plurality of responsible actors: international responsibility for acts of the coalition provisional authority in Iraq”, in The Iraq War and International Law, Phil Shiner and Andrew Williams, eds. (Hart Publishing, 2008); Marco Sassòli, “State responsibility for violations of international humanitarian law”, International Review of the Red Cross, vol. 84, No. 846 (June 2002), p. 413. Human Rights Committee, general comments No. 29, paras. 11 and 16; and No. 35, paras. 66–68. Responsibility of States, art. 41 (2); Commentary on art. 41 of the articles on the responsibility of States (A/56/10, chap. IV.E.2), para. 11. 13