VII. FUNDAMENTAL LEGAL QUESTIONS
104. Given the questionable legality of the circumstances of the detention of women and children
in the al Hol and Roj camps, and given the relationships between European States and the
AANES/SDF authorities and the influence European States are able to wield in respect of their
nationals in the camps, RSI considers that there are serious questions as to European States’
legal responsibility for violations committed against the detained women and children. In this
section, RSI briefly sets out some of the realistic arguments establishing European States’
own legal responsibility for the ongoing detention and intolerable conditions experienced
by their nationals in the North East Syria camps so as to underscore the imperative for
European action. An exhaustive technical legal analysis of the situation will be provided in
the forthcoming report ‘Closing Europe’s Guantanamo,’ due for publication in early 2021.
Obligations to Prevent Violations of Fundamental International Norms
105. The fact that the detainees in the camps are within the physical control of the SDF and the
AANES does not mean that responsibility as a matter of international law would end with
them. The principles of sovereignty and non-intervention which normally prevent foreign
States from bearing responsibilities for what is occurring across borders are important,
but are far from absolute as a matter of international law, especially where non-State
actors and situations of compromised sovereignty are concerned. Basic standards of
international humanitarian law justify, and indeed may well demand, intervention from
bystander States. Basic norms of international law are binding erga omnes – that is, they are
obligations which, as the International Court of Justice has consistently stated ‘[b]y their
very nature … are the concern of all States’ and so ‘[i]n view of the importance of the rights
involved, all States can be held to have a legal interest in their protection.’94
106. States not only have a legal interest in the protection of these basic norms, they are also
expected to comply with them. As a matter of international law generally, the
International Court of Justice has noted that, once a situation has been determined
to constitute a serious breach of international law, that situation ‘cannot remain without
consequence’ and so ‘there is an obligation [upon States] to bring that situation to an
end.’95 The International Law Commission – the most authoritative body of international
legal experts tasked with codifying international law – has reiterated this obligation in
Article 41 of the Articles on State Responsibility,96 which have been repeatedly endorsed
by the United Nations General Assembly.97
107. Where serious violations of international humanitarian law are concerned, customary
international law98 and Common Article 1 to the Geneva Conventions (to which all States
are signatories) oblige States to refrain from encouraging violations of
international humanitarian law by any party to an armed conflict, and also positively require
States to exert their influence, to the degree possible, to bring violations of international
humanitarian law
40
RIGHTS & SECURITY INTERNATIONAL
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