EJIL: Talk! – Torture in Libya and Questions of EU Member State Complicity
▻https://www.ejiltalk.org/torture-in-libya-and-questions-of-eu-member-state-complicity
There are many tangents to questions of ‘European complicity’ in the torture of Libyan refugees and migrants. For example, issues regarding the obligation of non-refoulement (p. 53 of report), or the extraterritorial application of human rights obligations (pp. 54-56) (for insights on these particular matters see Gauci and Jackson respectively). The following post will briefly analyse the applicable secondary rules relating to how EU states could be held responsible for complicity in torture under general international law in light of the facts contained in the Amnesty report.
The relevant legal framework
Article 2 of the International Law Commission (ILC) Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) clarifies that state responsibility can be triggered if an act or omission is attributable to a state and also breaches an international obligation of that state. Article 16 of the ARSIWA sets out two conditions for holding states responsible for aiding or assisting another state in an internationally wrongful act:
(a) The state ‘aiding or assisting’ another state must do so with knowledge of the wrongful act in question.
(b) The act would be internationally wrongful if committed by that state.
How these requisites of state responsibility for complicity can be met in this particular case pose a number of issues. For the purposes of this post, the ‘aid or assistance’ spoken of is the funding, technical and logistical support given to Libyan border control authorities by EU states. As the Amnesty report provides substantial evidence in this regard (pp. 42-50), it shall be assumed that there is a sufficient nexus between this ‘aid or assistance’ of EU states, and its contribution to the acts of torture in Libya.
The knowledge requirement