4 Direct Military Assistance to Incumbent Governments Implicated in Violations of International Humanitarian and/or Human Rights Law

This chapter discusses the question of whether third states are prohibited from sending their armed forces to requesting states implicated in widespread violations of international humanitarian and human rights law. Article 3 of the Resolution on Military Assistance by Request of the Institut de Droit International (IDI) 2011 has stimulated the debate, in as far as it claims that the ‘sending of armed forces by one state to another state upon the latter’s request’ is prohibited if it is in violation of ‘generally accepted standards of human rights’. This statement may be read in various ways. First, it can be understood as meaning that the troops of the intervening (assisting) state themselves must adhere to international human rights standards when exercising force at the request of the territorial (recipient) state. However, article 3 of the IDI 2011 Resolution could also be interpreted as prohibiting direct military assistance that would result in the aiding or assisting of human rights violations by the recipient state. The chapter then considers the incurrence and consequences of derivative state responsibility of an intervening state under customary international law for the violations of international human rights and humanitarian law of the territorial state. In so doing, the analysis is informed by case law and doctrine relating to derivative responsibility for such violations through conduct stopping short of direct military support.