The International Law Commission states the duty not to recognize an unlawful situation and not to assist in maintaining it at Article 41(2) of its articles on state responsibility, in a single sentence, and that text has never been opened for signature: the General Assembly annexed it to resolution 56/83 of 12 December 2001 and commended it to governments. It is often said that states other than Israel owe duties over the occupation, and that what they owe is non-recognition and non-assistance. The written sources for that claim are narrower than the phrase and of far more varied weight: one treaty sentence whose second limb the text leaves open, an arms treaty setting two bars on two undefined standards, and an enacted end-use provision in the largest supplying state that mentions international humanitarian law nowhere.
Key Findings
- The text that states the duty outright is not a treaty. The General Assembly recorded the International Law Commission’s articles on state responsibility as an annex to resolution 56/83 of 12 December 2001, corrected by the corrigendum A/56/49(Vol. I)/Corr.4. The Assembly has commended them to governments and never opened them for signature.
- Article 41(2) states it in one sentence. The International Law Commission states: “No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.”
- Complicity under the same text turns on two cumulative conditions, not one. The International Law Commission states, at Article 16, that responsibility attaches “if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.”
- The arms treaty sets two bars on two standards and defines neither. The Arms Trade Treaty states, at Article 6(3), that a State Party shall not authorize a transfer where it “has knowledge at the time of authorization” that the arms would be used in listed crimes, and at Article 7(3) that an export is barred where the exporting State determines “that there is an overriding risk” of the consequences in paragraph 1.
- The largest supplier’s statute lists permitted purposes and no others. The Arms Export Control Act, at 22 U.S.C. 2754 as the Office of the Law Revision Counsel publishes it, states that defence articles and services “shall be sold or leased by the United States Government under this chapter to friendly countries solely for internal security, for legitimate self-defense,” and four further enumerated purposes. It mentions international humanitarian law, the Geneva Conventions and civilian harm nowhere.
Which text states the duty not to recognize an unlawful situation?
The International Law Commission states it at Article 41(2), in one sentence: “No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.” The Commission adopted that text at its fifty-third session.
It is often said that states other than Israel owe duties here, and that what they owe is to withhold recognition and assistance. Of the consequences named in argument about the occupation, it is stated most often and defined least.
The International Court of Justice stated the duty in its advisory opinion of 19 July 2024 on Israel’s policies and practices in the occupied Palestinian territory. The seventh and eighth subparagraphs of the dispositif, covering the obligations of states and of international organizations, were each recorded at twelve votes to three. That recorded division is what this report carries from the opinion; a separate report covers the recorded endorsement that followed.
The International Law Commission published the sentence inside a general codification of the law of state responsibility, a text about wrongful acts by states that names no country and no situation.
Two things travel with the sentence and are usually dropped when it is quoted. The duty is conditional, attaching to a situation “created by a serious breach within the meaning of article 40,” a cross-reference it does not spell out. And it has two limbs, non-recognition and non-assistance, reaching different conduct.
The International Law Commission records, at Article 19, that the chapter is without prejudice to the responsibility of the state committing the act, so nothing in it moves responsibility off the acting state.
Is the state responsibility text a treaty any state has ratified?
The International Law Commission adopted the articles at its fifty-third session, and the General Assembly recorded them as an annex to resolution 56/83 of 12 December 2001, commending them to the attention of governments. The Assembly has never opened them for signature. They are a codification text and not a convention.
That distinction decides what authority the sentence carries. A convention binds the states that ratify it, and a depositary publishes the list of those states. This text has no such list, because there is nothing to sign.
The record of its passage is short. The International Law Commission finished the articles at its fifty-third session. The General Assembly then annexed the finished text to a resolution rather than convening a conference to open it for signature, and the annexed text carries a corrigendum, A/56/49(Vol. I)/Corr.4, which is the form in which the Commission publishes it.
So a sentence quoted as though it stated a binding treaty rule is, on its face, an article annexed to a recommendation. What is said to carry it further is the separate claim that it restates customary international law, which the text asserts nowhere about itself and which this report did not test.
Each written source read here entered the record on its own date and in its own form.
Nothing above establishes that the duty is unreal. It establishes what the instrument is. Where a claim rests on a treaty, a reader can check the ratification record; where it rests on these articles, there is no ratification record to check.
What must a state know before assistance makes it responsible?
The International Law Commission states, at Article 16, that responsibility attaches to a state aiding or assisting another in an internationally wrongful act on two cumulative conditions: “if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.”
The article sits in the chapter the International Law Commission titles responsibility of a state in connection with the act of another state, and its whole operative text is the sentence quoted above.
The conjunction between the conditions is “and,” not “or,” so both must hold. Condition (a) fixes the mental element at knowledge of the circumstances. Condition (b) does something different and is dropped far more often: it asks whether the assisting state would itself have acted wrongfully by doing the act, which means the rule the acting state is said to have broken has to bind the assisting state too.
What the article leaves out is as specific as what it contains. It names no category of assistance, so nothing distinguishes weapons from money, intelligence or diplomatic support. It sets no threshold of quantity and none of proximity between the assistance and the act. And it names no body to find that either condition is met.
The International Law Commission records, at Article 19, that the chapter is without prejudice to the responsibility of the state committing the act, or of any other state, so complicity under Article 16 is additive rather than substitutive.
Read together, the two articles state a rule tightly drafted on its conditions and silent on almost everything needed to apply it to a particular transfer.
Does the complicity article require intent?
The International Law Commission states, at Article 16, “knowledge of the circumstances of the internationally wrongful act.” It does not state “intent,” and it does not state “should have known.” Whether intent is additionally required is unsettled, and the words of the article do not settle it.
The three formulations are three different bars, which is why the wording carries the weight it does. A knowledge standard asks what a government knew. An intent standard asks what it meant to bring about. A constructive standard, the “should have known” form, asks what a government would have known had it looked, and reaches conduct the other two do not.
The article uses the first and no other. That is a fact about the text, checkable in one reading, which is why it is quoted here rather than summarized.
A codification text requiring knowledge is silent on whether intent is also required, and silence in an instrument of that kind is not itself a rule either way. That silence is filled elsewhere, and the elsewhere was not read. The International Law Commission published a commentary on the articles in 2001, in the Yearbook of the International Law Commission, and it addresses the knowledge question directly. Nothing below reports what it holds, because the volume was not opened for this report.
The absence is recorded rather than filled. A reader looking for what the Commission concluded about intent will find it in that volume and not here. What the article itself supplies is one word, “knowledge,” and a second condition, opposability, which has nothing to do with mental state at all.
Which treaty sentence binds every party to the Geneva Conventions?
Geneva Convention I states it complete at Article 1: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” The identical wording opens Conventions II, III and IV, so there is no single instrument called Common Article 1; there are four Article 1s.
The plural matters for citation rather than substance: the wording above was read at Convention I, and a report quoting the sentence has quoted one of four texts.
The sentence is the strongest instrument here on one measure and the weakest on another. It is a treaty article rather than an annexed draft, and it opens each of the four Conventions of 12 August 1949. It also names no mechanism, sets no threshold, identifies no body to find a breach and attaches no consequence. Its whole content is an undertaking.
Two properties of the wording are worth stating exactly. The verb is “undertake,” which describes what parties assume rather than what any organ enforces. And the qualifier is “in all circumstances,” admitting no exception for necessity, for reciprocity or for the conduct of the other side.
No count of the states bound by it appears in this report. That number is widely quoted, the source read here carries none, and none is used.
The depositary of the 1949 Conventions is the Swiss Federal Council, and its law portal at fedlex.admin.ch served no document text on 19 August 2026. No full English text was found on an official-tier United States host either, although the Conventions are United States treaty law published at 6 U.S.T. 3114 and following. That is a retrieval limit rather than a finding, recorded because a reader may go looking.
Do the words “ensure respect” reach another state’s conduct?
Geneva Convention I states the undertaking in two limbs, and the second is the contested one. The treaty text does not state whether “to ensure respect” reaches another party’s conduct or only a state’s own forces and population. The International Committee of the Red Cross published a position on that question in its Commentary of 2016, which is that body’s reading rather than the treaty’s.
Everything in the third-state argument turns on which reading governs. On the internal reading, the sentence directs a government to its own armed forces, its own officials and its own population, and says nothing about what a supplying state owes over a war it is not fighting. On the external reading, the same words carry an obligation to induce compliance by other parties, and the sentence becomes the treaty hook the whole duty hangs from.
The instrument does not choose. It states the undertaking twice over, “to respect and to ensure respect,” and stops. There is no definition article, no clause allocating the duty between the two readings, and no provision naming who decides.
The Commentary of 2016 was not read for this report, so nothing here reports what it concludes. It is named because naming who holds a reading is the alternative to writing that the reading is widely held.
Beyond that body, this report retrieved no named holder of either reading among the sources read. That is a limit on what was retrieved rather than a claim that no such holders exist, and it is stated so the absence is not mistaken for a survey of the literature.
What does the arms treaty prohibit outright?
The Arms Trade Treaty states, at Article 6(3), that a State Party shall not authorize a transfer “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.”
The instrument dates precisely. The General Assembly adopted it by resolution 67/234 B of 2 April 2013, it opened for signature on 3 June 2013, and the Arms Trade Treaty records its entry into force on 24 December 2014.
Article 6 holds three prohibitions and this is the third. The first bars a transfer that would violate measures adopted by the Security Council under Chapter VII of the Charter, arms embargoes in particular; the second, one that would violate a State Party’s relevant international obligations under agreements to which it is a party.
Two features of the drafting decide how far the third reaches. It operates on the authorization rather than the shipment, and knowledge is measured at the time of authorization, so it governs what a licensing decision may be taken in the face of. And the verb inside the crimes clause is “would be used,” not “could be used,” a higher bar than the one in the next article.
The scope runs wider than finished weapons. The Arms Trade Treaty states, at Articles 3 and 4, that the same prohibitions extend to ammunition and to parts and components exported in a form that makes assembly possible. The treaty also carries the Geneva sentence into its own Principles, which record “Respecting and ensuring respect for international humanitarian law in accordance with, inter alia, the Geneva Conventions of 1949.”
Which bar applies when knowledge falls short?
The Arms Trade Treaty states the operative bar at Article 7(3): where the exporting State Party determines, after conducting its assessment and considering available mitigating measures, “that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.” It defines “overriding risk” nowhere.
The assessment underneath the bar is set out one paragraph earlier. The Arms Trade Treaty states, at Article 7(1), that the exporting State shall assess, “in an objective and non-discriminatory manner,” whether the arms would contribute to or undermine peace and security, and whether they “could be used to: (i) commit or facilitate a serious violation of international humanitarian law,” with parallel limbs for international human rights law, terrorism offences and transnational organized crime offences.
Three verbs run across the two articles and they are not interchangeable. Article 6(3) turns on arms that “would be used.” Article 7(1) turns on arms that “could be used.” Article 7(3) turns on an “overriding risk.” Each is a different question, and only the last produces the export bar most often quoted.
The treaty defines neither of its operative terms. “Knowledge” is undefined and “overriding risk” is undefined, and the second was contested through the negotiation, so it carries no agreed gloss such as substantial or clear.
The two articles are merged constantly in summary. A sentence reporting that the treaty prohibits exports where there is a risk of violations collapses a knowledge prohibition and an overriding-risk prohibition into one rule and states neither. Whether the treaty binds the United States was not verified against the depositary for this report, so nothing here states an obligation of the United States under it.
For what purposes does the largest supplier’s statute permit a transfer?
The Arms Export Control Act states, at section 4, that defence articles and defence services “shall be sold or leased by the United States Government under this chapter to friendly countries solely for internal security, for legitimate self-defense, for preventing or hindering the proliferation of weapons of mass destruction and of the means of delivering such weapons.”
The Office of the Law Revision Counsel publishes the section at 22 U.S.C. 2754, and the text was read in the prelim edition stating the laws in effect on 18 August 2026.
The word doing the work is “solely.” It makes the section an exhaustive list of permitted purposes rather than of prohibited ones, so an argument under it turns on whether a use falls inside the enumerated purposes, not on whether it is separately unlawful.
The remaining purposes complete the list: participation in regional or collective arrangements consistent with the Charter of the United Nations, participation in collective measures requested by the United Nations for maintaining or restoring international peace and security, and enabling foreign military forces in less developed friendly countries to construct public works and engage in other activities helpful to their economic and social development.
What the section leaves out is what a reader most often assumes is in it. The Arms Export Control Act mentions international humanitarian law, the Geneva Conventions and civilian harm nowhere, and “consistent with the Charter of the United Nations” attaches only to the regional-and-collective clause.
The recipient’s side of the bargain sits one section earlier. The Act states, at section 3(a)(2), that the recipient shall have agreed not to use the article for purposes other than those for which it was furnished “unless the consent of the President has first been obtained.” A separate report covers the enacted humanitarian-access condition.
Who determines that a recipient used articles outside those purposes?
The Arms Export Control Act states, at section 3(c)(2): “The President shall report to the Congress promptly upon the receipt of information that a violation described in paragraph (1) of this subsection may have occurred.” The next paragraph records two routes to ineligibility and only two.
Paragraph (1) defines the violation. The Arms Export Control Act reaches a country that uses defence articles or services “in substantial violation (either in terms of quantities or in terms of the gravity of the consequences regardless of the quantities involved)” of an agreement entered into under the Act, including by using them “for a purpose not authorized under section 2754.”
The two routes are stated together. The Act records, at section 3(c)(3)(A), that a country is deemed ineligible “if the President so determines and so reports in writing to the Congress, or if the Congress so determines by joint resolution.” Restoration runs through the same office: section 3(c)(4) lifts ineligibility only where the President determines the violation has ceased and the country “has given assurances satisfactory to the President that such violation will not recur.”
Read as a scheme, the section contains no self-executing cutoff and names no neutral adjudicator. The reporting duty, the determination, the congressional route and the restoration all run through the President or the legislature, and a joint resolution is itself presented to the President.
The gravity clause is the one part of the test that does not depend on scale. A violation qualifies as substantial either in quantities or in gravity “regardless of the quantities involved,” so a single use can meet the statutory description. What the statute never supplies is a finder of fact outside the two political branches.
What does the general human rights condition on security assistance bar?
The Foreign Assistance Act states, at section 502B(a)(2): “Except under circumstances specified in this section, no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights.” The trigger is a pattern rather than an incident.
The section defines the violations and not the pattern. The Foreign Assistance Act states, at section 502B(d)(1), that the term includes “torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or the security of person.” For “consistent pattern” it supplies no threshold, no counting rule and no period.
The machinery around the bar is a request-and-resolution procedure. Section 502B(c)(1) allows either House by resolution, or the Senate Foreign Relations or House Foreign Affairs Committee, to require the Secretary of State to transmit a statement on a named country within thirty days, covering its human rights record and whether extraordinary circumstances require assistance to continue. Section 502B(c)(4)(A) then allows Congress to adopt a joint resolution terminating, restricting or continuing it.
One consequence works on its own. The Foreign Assistance Act records, at section 502B(c)(3), that where a requested statement is not transmitted within thirty days, “no security assistance shall be delivered to such country except as may thereafter be specifically authorized by law.” That is the only self-executing provision here, and a missed deadline triggers it rather than any finding about conduct.
Security assistance is also a narrower universe than an arms sale, since direct commercial sales licensed under the Arms Export Control Act run through another channel.
What does the unit-level bar require, and of whom?
The Foreign Assistance Act states, at section 620M(a), complete: “No assistance shall be furnished under this chapter or the Arms Export Control Act to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.”
The current standard is “credible information,” not “credible evidence.” The section was amended in 2022, and the text in force states information, a lower bar than the evidence formulation much secondary writing still reports.
The bar runs to a named unit and never to a country. It produces an ineligibility determination about one unit of one security force, so no finding about a state as a whole can come out of it.
The exception is one sentence. The Foreign Assistance Act states, at section 620M(b), that the prohibition does not apply where the Secretary determines and reports to the congressional committees that the government “is taking effective steps to bring the responsible members of the security forces unit to justice.”
Publication is required, with an exception that is self-certifying. Section 620M(d)(7) requires the Department to make the identity of barred units public “to the maximum extent practicable,” and the Foreign Assistance Act records, at section 620M(e)(1), that this means public unless the Secretary determines, case by case, that disclosure is not in the national security interest and supplies a detailed justification, which may be classified. The absence of a published list therefore establishes nothing either way.
One numbering point travels with any citation to it. The Office of the Law Revision Counsel publishes the section at 22 U.S.C. 2378d, where it was added in 2007 as 620J and renumbered 620M in 2011, so a citation to 620J before 2012 is correct for its date.
Methodology and limitations
This report reads three kinds of source.
The first is a codification text annexed to a General Assembly resolution: the International Law Commission’s articles on state responsibility, at Articles 16, 19 and 41. The second is treaty text: Article 1 of Geneva Convention I of 12 August 1949 and Articles 3, 4, 6 and 7 of the Arms Trade Treaty. The third is enacted United States statute, sections 3 and 4 of the Arms Export Control Act and sections 502B and 620M of the Foreign Assistance Act, which the Office of the Law Revision Counsel publishes in the United States Code prelim edition stating the laws in effect on 18 August 2026.
Each is an instrument, and an instrument establishes what a standard says and never how it was applied, so nothing here establishes what any government did, knew or decided.
The advisory opinion of 19 July 2024 is named in body prose with its date and the recorded votes on the subparagraphs cited. It supports no figure and appears in no reference entry, because it is a legal conclusion on a contested question rather than an instrument. Its nine subparagraphs carry four different majorities, and the two covering the third-state and international-organization duties were recorded at twelve votes to three.
Six limits are recorded rather than resolved. Whether the Arms Trade Treaty binds the United States was not verified against the depositary, so no obligation of the United States under it is stated above. The International Law Commission published a commentary on the articles in 2001, and it was not read here. The International Committee of the Red Cross Commentary of 2016 on “ensure respect” was not read, so the two readings are named without either being adopted. The source read for Article 1 carries no count of states parties, so none is used. The depositary’s portal at fedlex.admin.ch served no document text on 19 August 2026, and no full English text of the 1949 Conventions was located on an official-tier United States host. And the consequences directed at Israel in the prevailing summary, ending the presence, ceasing settlement activity, evacuating settlers and making reparation, rest on the advisory opinion alone among these sources, which is why they are named with their dates and margins and carried no further. A separate report reads the treaty clause the settlement findings rest on.
Nothing among these sources measures how the third-state duty is discussed in public, and no section addresses that.
Conclusion
So what do other states owe over the occupation, once the International Law Commission’s text, the Geneva sentence and the export statutes are read in order rather than in summary? The sentence that says it plainest was never offered for signature. Article 41(2) sits inside a codification the General Assembly commended to governments and left unsigned, and Article 16 beside it sets two cumulative conditions, knowledge of the circumstances and a rule that would have to bind the assisting state too, with no body named to apply them.
The instruments that bind hardest say the least about it. Article 1 of the 1949 Conventions is a treaty article binding every party in all circumstances, and its second limb, the one the third-state argument runs through, is left open by the text containing it. The Arms Trade Treaty sets a knowledge prohibition and an overriding-risk prohibition and defines neither term. In the enacted law of the largest supplying state the end-use provision lists permitted purposes behind the word “solely,” mentions international humanitarian law nowhere, and routes every determination about a violation to the President or to a joint resolution that is itself presented to the President. The unit-level bar does name a standard, credible information, and points it at a unit rather than a country.
Read in order, the sources run in an odd direction. The more precisely a text states the duty, the less it binds; the more firmly it binds, the less it says about what the duty is. An obligation asserted of every state on earth is addressed, on paper, to no office at all. When the clearest statement of it is the one nobody signed, and the statute that actually governs a transfer never mentions it, which of the two is a supplying government working from on the morning it signs the licence?
Frequently Asked Questions
Are the state responsibility articles binding law?
The General Assembly recorded them as an annex to resolution 56/83 of 12 December 2001 and commended them to governments, and they have never been opened for signature, so no ratification record exists. Whether they restate customary international law is a separate claim the text does not make.
What is the difference between Article 16 and Article 41(2)?
The International Law Commission states the complicity rule at Article 16, turning it on knowledge of the circumstances and on the act being wrongful if the assisting state committed it. Article 41(2) is the non-recognition and non-assistance rule, attaching to a situation created by a serious breach.
Why is “Common Article 1” not a single document?
Because no single instrument carries that name. The Geneva Conventions record identical wording at Article 1 of each of their four texts of 12 August 1949, so a citation to it is a citation to one of four.
Does the arms treaty ban sales where violations are likely?
Not in those words. The Arms Trade Treaty states at Article 6(3) that a State Party shall not authorize a transfer where it has knowledge that the arms would be used in listed crimes, and at Article 7(3) that an export is barred on a determination of overriding risk.
Who can find that a country misused United States defence articles?
The Arms Export Control Act records, at section 3(c)(3)(A), two routes and only two: a presidential determination reported in writing to Congress, or a determination by Congress by joint resolution. It names no court and no agency.
Has any list of barred units been published for any country?
The Foreign Assistance Act requires publication “to the maximum extent practicable” at section 620M(d)(7), and section 620M(e)(1) lets the Secretary withhold a name on a national security determination that may be classified. That exception is self-certifying, so an absent list establishes nothing.
Sources
- Arms Export Control Act, 1968 as amended, sections 3 and 4, codified at 22 U.S.C. 2753 and 2754. Public Law 90-629, 82 Stat. 1321 to 1322. Office of the Law Revision Counsel, uscode.house.gov, prelim edition stating laws in effect on 18 August 2026. Enacted statute.
- Arms Trade Treaty, 2013. Articles 3, 4, 6 and 7. Adopted by General Assembly resolution 67/234 B of 2 April 2013, opened for signature 3 June 2013, entered into force 24 December 2014. Treaty text.
- Foreign Assistance Act, 1961 as amended, section 502B, codified at 22 U.S.C. 2304. Office of the Law Revision Counsel, uscode.house.gov. Enacted statute.
- Foreign Assistance Act, section 620M, added 2007 and renumbered 2011, codified at 22 U.S.C. 2378d. Office of the Law Revision Counsel, uscode.house.gov. Enacted statute.
- Geneva Conventions of 12 August 1949, Article 1, common to Conventions I, II, III and IV. Treaty text; the depositary’s portal at fedlex.admin.ch served no document text on 19 August 2026.
- International Law Commission, 2001. Responsibility of States for Internationally Wrongful Acts, Articles 16, 19 and 41. Annexed to General Assembly resolution 56/83 of 12 December 2001, corrected by A/56/49(Vol. I)/Corr.4. Codification text annexed to a resolution, not a treaty.