Article 16 of the International Law Commission’s articles on state responsibility sets two cumulative conditions for one state’s responsibility in aiding another’s internationally wrongful act, and it is the only instrument that defines complicity at all. United States arms law does not use that test. The Arms Export Control Act lists permitted purposes exhaustively behind the word “solely” and names international humanitarian law nowhere, and the Leahy law bars a named unit on “credible information” rather than a country on proof. The condition people attribute to American arms law sits instead in a 2024 presidential memorandum which states that it “should not be understood or cited” as required by treaty or customary international law.
Key Findings
- Article 16 of the International Law Commission’s articles, annexed to General Assembly resolution 56/83 of 12 December 2001, makes an assisting state responsible only where two conditions both hold: knowledge of the circumstances, and that the act would be wrongful if the assisting state committed it. No state ratified the text.
- Section 4 of the Arms Export Control Act, which the Law Revision Counsel publishes at 22 U.S.C. 2754, permits sale or lease “solely for internal security, for legitimate self-defense” and four further enumerated purposes. International humanitarian law, the Geneva Conventions and civilian harm appear nowhere in it.
- Section 3(c)(3)(A) of the same Act names two routes and no third: a country is ineligible “if the President so determines and so reports in writing to the Congress, or if the Congress so determines by joint resolution.” No court appears in the text.
- Section 620M of the Foreign Assistance Act, at 22 U.S.C. 2378d, bars assistance to “any unit of the security forces of a foreign country” on “credible information,” and lets the Secretary of State withhold a barred unit’s identity on a determination that “may be submitted in classified form.”
- A search of the Government Publishing Office’s collections of presidential documents and the Federal Register, run 14 September 2026, returned no document containing “substantial violation” together with “Arms Export Control Act.”
What does complicity mean in the one instrument that defines it?
Two cumulative conditions, not one: Article 16 of the International Law Commission’s articles on state responsibility states that a state is responsible for aiding or assisting another state’s internationally wrongful act only 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.”
Both limbs have to be satisfied, and the word joining them is “and.” The first is about what the assisting state knew; the second about what binds the assisting state itself, so an act wrongful for the acting state but not opposable to the assisting one falls outside the article.
The International Law Commission states “knowledge of the circumstances,” not intent and not should have known. Whether intent is additionally required is argued in the literature, and the words do not settle it.
The Office of Legal Affairs publishes the text the Commission adopted at its fifty-third session, which the General Assembly annexed to resolution 56/83 of 12 December 2001. The articles were never opened for signature, so no state is a party.
Two neighbouring provisions belong beside it. Article 19 records that the chapter “is without prejudice to the international responsibility” of the state committing the act, so Article 16 adds a responsibility rather than redistributing one. The International Law Commission states separately, at Article 41(2), that no state shall render “aid or assistance in maintaining” a situation created by a serious breach.
That is the definitional apparatus entire, and everything below is an American statute that does not use it.
Does United States arms law contain that test?
It does not: Section 4 of the Arms Export Control Act states that defense articles and defense 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. The Law Revision Counsel publishes the section at 22 U.S.C. 2754.
The Arms Export Control Act states the four remaining purposes as narrowly as the first two: hindering the proliferation of weapons of mass destruction; participation in regional or collective arrangements consistent with the Charter of the United Nations; participation in collective measures the United Nations requests to maintain or restore international peace and security; and enabling foreign military forces in less developed friendly countries to construct public works.
The structure carries the argument. The list is exhaustive and it is a list of permitted purposes, so a question under the section is whether a use falls inside it, not whether the use is separately unlawful.
International humanitarian law is not in the sentence. Neither are the Geneva Conventions, proportionality, distinction, or civilian harm. The one clause pointing outward is “consistent with the Charter of the United Nations,” and it attaches only to the regional and collective arrangements purpose, not to self-defense.
So the two instruments do different work. The International Law Commission states a test about what the assisting state knew and what binds it. The Arms Export Control Act states a test about what the articles were furnished for, and answers it with a closed list.
What does a recipient agree to when the articles are transferred?
A written promise the recipient makes about its own future conduct: Section 3(a)(2) of the Arms Export Control Act states that a sale requires the country to have “agreed… not to use or permit the use of such article or related training or other defense service for purposes other than those for which furnished unless the consent of the President has first been obtained.”
Three features decide what the clause can answer. It is an undertaking, labelled as one by the words “shall have agreed.” It binds the recipient about its own conduct, not the United States about its transfers. And the escape hatch is the President’s consent, so a use outside the furnished purposes is no breach where consent came first.
The undertaking sits alongside a promise about onward transfer. The same paragraph states that the country will not transfer title to or possession of a defense article “to anyone not an officer, employee, or agent of that country or international organization,” and the Law Revision Counsel publishes both in one sentence.
Where the paragraph points is back to Section 4. “Purposes other than those for which furnished” takes its content from the enumerated list, so the undertaking imports that closed list rather than adding to it. Nothing in it mentions how the articles may be used, against whom, or under what law.
Read against Article 16, the difference is structural. The International Law Commission states a test about the assisting state. The statutory undertaking asks instead what the receiving state promised, and answers with a promise the receiving state wrote about itself.
Who decides whether a use fell outside those purposes?
Two offices and no third: Section 3(c)(3)(A) of the Arms Export Control Act states that a country “shall be deemed to be ineligible… if the President so determines and so reports in writing to the Congress, or if the Congress so determines by joint resolution.” No court appears anywhere in the subsection, and no cutoff operates by itself.
The machinery around it is short. Section 3(c)(2) sets the trigger duty: “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.” Section 3(c)(1)(A) sets the threshold at a “substantial violation,” defined only by a parenthesis, “either in terms of quantities or in terms of the gravity of the consequences.”
Paragraph (1)(A) names the violation as using the articles “for a purpose not authorized under section 2754 of this title,” so the Arms Export Control Act closes the chain on its own enumerated list.
The drafting produces a finding that exists only when one of two political branches makes it. The President both receives the information and decides whether it establishes a violation, and Congress may reach the same conclusion by joint resolution, itself presentable for signature. The United States Code states no standard of proof for either route.
So a reader looking in this statute for an answer to the complicity question finds a procedure rather than a rule. The Arms Export Control Act states who may say that a country has violated it, and in what document, rather than when it has.
How does ineligibility end once it begins?
By satisfying the same officer who found the violation: Section 3(c)(4) of the Arms Export Control Act states that a country “shall remain ineligible” until the President determines the violation has ceased and the country “has given assurances satisfactory to the President that such violation will not recur.” The section supplies no standard for either judgment.
Both limbs run to the President. The first is a finding of fact about whether conduct has stopped; the second assesses a promise about the future, and the adjective the Arms Export Control Act states is “satisfactory,” fixing the test to the satisfaction of whoever applies it.
The assurance is the recipient government’s own written representation. Nothing in the paragraph, as the Law Revision Counsel publishes it, requires that representation to be verified, published or tested, and nothing requires the determination that the violation has ceased to rest on stated evidence.
Section 3(c)(3)(B) adds a qualification in the opposite direction: notwithstanding a determination of ineligibility, cash sales and deliveries may continue where the President certifies that they are important to the security of the United States, unless Congress has itself determined the ineligibility by joint resolution.
Read with the finding provision above it, the section describes a closed circuit. The same office receives the information, decides whether it amounts to a substantial violation, reports that decision to Congress, judges whether the conduct has stopped, judges whether the assurance is good enough, and meanwhile may certify that sales should continue. A statute built that way produces a public artefact only when someone inside the circuit makes one, and silence is its ordinary state.
What does the general human rights condition on security assistance require?
A pattern, not an incident: Section 502B of the Foreign Assistance Act, which the Law Revision Counsel publishes at 22 U.S.C. 2304, states that “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.” A qualifier sits in front: “Except under circumstances specified in this section.”
The Act lists the violations in its definitions subsection. 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.” It opens with “includes,” so the list is illustrative, and its last item is a standard, not an act.
What the section never supplies is the arithmetic. “Consistent pattern” is defined nowhere in it: no number of incidents, no period over which they fall, no share of a force or a population, no body designated to count. The same subsection extends the bar to “the police, domestic intelligence, or similar law enforcement forces of a country,” subject to a certification that “extraordinary circumstances exist.”
One clause in the reporting subsection is worth naming for a different reason. The same Act states that the annual country human rights report shall include a description of “the nature and extent of acts of anti-Semitism and anti-Semitic incitement that occur.” The general condition is therefore the broadest provision in this report and the least specified, reaching a country rather than a unit on a threshold the text leaves to whoever applies it.
What happens when Congress asks and no statement arrives?
Thirty days is the only self-executing number in Section 502B, and the Foreign Assistance Act states it twice. Either House by resolution, or the Senate Foreign Relations or House Foreign Affairs Committee, may require the Secretary of State to transmit a country statement “within thirty days after receipt of such request.” Paragraph (3) attaches a consequence to the silence.
Its words are flat. The United States Code states that if the statement “is not transmitted in accordance therewith within thirty days after receipt of such request, no security assistance shall be delivered to such country except as may thereafter be specifically authorized by law… unless and until such statement is transmitted.” Delivery stops because a document did not arrive, not because anyone found anything.
Paragraph (1) states what the statement must contain: all available information about observance of and respect for human rights in the country, the steps the United States has taken to promote them, and whether “extraordinary circumstances exist which necessitate a continuation of security assistance.” Paragraph (4)(A) then lets Congress, once a statement is transmitted, “adopt a joint resolution terminating, restricting, or continuing security assistance for such country.”
The design inverts what a reader expects. Everywhere else the consequence attaches to conduct and is found by an officer. Here it attaches to a missed deadline and operates without any finding about conduct at all, and a statement arriving on the thirtieth day lifts it whatever it says. This is the only provision examined here that runs on its own.
Whom does the Leahy law bar, and on what standard?
A unit, on information rather than proof: Section 620M(a) of the Foreign Assistance Act states in full that “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 Law Revision Counsel publishes it at 22 U.S.C. 2378d.
Three words do the work, and each narrows or widens the bar in a way the public argument usually loses. “Unit” means the prohibition runs to a named formation and never to a country, so the section can never produce a finding about a state. “Credible information” is the standard, and the Law Revision Counsel records that Congress substituted it for “credible evidence” in 2011, in the same amendment that substituted “a gross violation” for “gross violations.” It is a threshold for the Secretary, not for a tribunal. And “has committed” is past tense about a completed act, with no requirement of a conviction, a charge, or a published finding.
The section reaches both channels, barring assistance under the Foreign Assistance Act and the Arms Export Control Act alike, which puts it beside the transfer provisions above.
What it produces is an ineligibility determination about a named unit. It is not a verdict about anyone’s conduct, it creates no record that a violation occurred, and it states no definition of “gross violation of human rights” of its own.
One confusion is worth removing. There are two Leahy laws, and this is the State Department one; the United States Code states the Defense Department provision separately, at 10 U.S.C. 362.
When does the Leahy bar lift?
On the recipient government’s own accountability work, assessed by one officer: Section 620M(b) of the Foreign Assistance Act states in full that “the prohibition in subsection (a) shall not apply if the Secretary determines and reports to the appropriate congressional committees that the government of such country is taking effective steps to bring the responsible members of the security forces unit to justice.”
The exception turns outward, onto processes the United States does not run. What lifts the bar is not a change in the information, nor a finding that the violation did not occur, but a judgment that the country whose unit was barred is acting on it.
“Effective steps” is left undefined. The Foreign Assistance Act states no requirement of a prosecution, a conviction, a discharge or a completed proceeding, and says nothing about how far a process must have run before it counts. “Taking” puts the test in the present continuous, so a process under way can satisfy it.
The Secretary both determines and reports, and the report runs to the four committees the section names. Nothing requires the determination to be published, and nothing sets a period after which it is revisited.
Read with the bar above it, the pair describes one officer applying two undefined standards in sequence: the Secretary who holds the credible information that bars a unit decides whether the steps taken about it are effective enough to unbar it. Whether either determination has been made about any unit is a separate question, and the section is not where its answer sits.
Is the list of barred units published?
Not necessarily, because the provision requiring publication defines the requirement against itself: Section 620M(d)(7) of the Foreign Assistance Act states that the Department shall “make publicly available, to the maximum extent practicable, the identity of those units for which no assistance shall be furnished.” The definitions subsection fixes what that phrase means.
Congress added that subsection in 2022, and its words are these: the identity “shall be made publicly available unless the Secretary of State, on a case-by-case basis, determines and reports to the appropriate congressional committees that public disclosure is not in the national security interest of the United States and provides a detailed justification for such determination, which may be submitted in classified form.”
Every element of the carve-out is internal. The Secretary determines it, the determination goes to four committees rather than the public, and the justification may be classified. The Act names no reviewer and no presumption that expires.
The consequence is exact, and it is the finding of this section. Because the withholding is self-certifying, the absence of a published list establishes nothing in either direction: it is consistent with no unit having been barred, and equally consistent with units barred and their identities withheld, and the text supplies no way to tell those apart from outside.
The rest of subsection (d) is vetting machinery rather than disclosure. The Foreign Assistance Act states that the Department shall keep a current list of such units and shall “seek to identify the unit involved when credible information of a gross violation exists but the identity of the unit is lacking.” An absence created by a statutory option is not evidence; it is a gap the statute authorised.
Where does the humanitarian-law condition on transfers come from?
Not from statute: the international-humanitarian-law condition on United States transfers sits in National Security Memorandum 20 of 8 February 2024, whose official text the Government Publishing Office records at DCPD-202400098. Its own general provisions disclaim the reading most often placed on it.
Section 4 says two things that decide what the instrument is. The memorandum “is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States.” And its requirements “are not intended to reflect an understanding that they are required by treaty or customary international law, and this memorandum should not be understood or cited to that effect.”
The second matters most for a complicity argument. An instrument disclaiming that its requirements reflect treaty or customary international law cannot supply the second limb of Article 16, which asks whether the act would be wrongful if the assisting state committed it.
Section 3 borrows its vocabulary from the statute rather than the law of armed conflict. The memorandum states that “defense article” and “defense service” “have the meanings given in section 47 of the Arms Export Control Act, 22 U.S.C. 2794,” a section that states the term to mean “any weapon, weapons system, munition, aircraft, vessel, boat, or other implement of war,” with the property and components listed after it.
A national security memorandum is a presidential directive. It imposes no obligation on a recipient country, and a later President may rescind it without an act of Congress, so any sentence about what it requires carries a date. A separate report reads the access assurance and the assessment it required.
What does the Arms Trade Treaty prohibit at the point of authorization?
Two different tests, routinely merged into one: Article 6(3) of the Arms Trade Treaty states 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.”
Article 7 is a different mechanism, reached only where Article 6 has not prohibited the transfer. The Arms Trade Treaty states that the exporting State Party shall assess whether the arms could be used to “commit or facilitate a serious violation of international humanitarian law” or of human rights law. Article 7(3) supplies the bar: where the exporting State “determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.”
So one test runs on knowledge at a moment and the other on a risk assessment, and the Arms Trade Treaty states no definition of either “knowledge” or “overriding risk.”
Whether any of this binds the United States is answered by the depositary’s own record, and the answer is no. The Treaty Section records the United States as having signed on 25 September 2013, and its status list carries a communication received on 18 July 2019 stating that “the United States does not intend to become a party to the treaty” and “has no legal obligations arising from its signature on September 25, 2013.”
What does “ensure respect” oblige a third state to do?
One sentence carries the whole legal argument behind third-state complicity claims, and Common Article 1 of the Geneva Conventions of 1949 states it: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” The United Nations Treaty Series records it in identical words in each of the four Conventions, at volume 75.
The first limb is uncontroversial: a party undertakes to respect the Convention, meaning to comply with it.
The second limb is where the dispute sits, and the article does not resolve it. One reading takes “ensure respect” as an external duty, obliging a party to use its influence to induce compliance by other parties, which is the route by which arming a state is said to engage the arming state’s own obligation. The competing reading takes it as internal only, obliging a party to ensure that its own armed forces, officials and population comply. The International Committee of the Red Cross published the external reading in its commentary, most recently in 2016; the narrower reading is maintained by states and by scholars who read the drafting record as addressed to a party’s own forces.
Three features are common ground. The Geneva Conventions state no threshold here, so nothing says how much influence is enough; they name no measures, so nothing says what a party must do; and they name no body to decide whether a party has ensured respect. The report stops where the text stops.
Methodology and limitations
This report reads instruments and reports what they say, applying none of them to any conduct.
The Office of the Law Revision Counsel publishes the statutes in the prelim edition of the United States Code, stating the law in effect on 18 August 2026: the Arms Export Control Act at 22 U.S.C. 2753, 2754 and 2794, the Foreign Assistance Act at 22 U.S.C. 2304, 2378-1 and 2378d, and the Department of Defense provision at 10 U.S.C. 362. The Government Publishing Office records National Security Memorandum 20 at DCPD-202400098, noting that an original was not available for verification. The treaty texts and the depositary status list were read on the Treaty Collection files on 14 September 2026.
The absence stated here was searched rather than assumed. On 14 September 2026 the Government Publishing Office’s search service was run over its collections of presidential documents and the Federal Register. “Substantial violation” together with “Arms Export Control Act” returned nothing. “22 U.S.C. 2753” returned twelve documents, all arms-regulations rulemakings apart from a 2006 memorandum finding one country eligible to receive defense articles. “Section 502B” with “determination” returned three Federal Register issues from 1979 and 1980. Congress.gov refused automated retrieval that day, so the joint-resolution route was not searched there.
Three limits bind the reading. A quoted provision is evidence of what the law requires, never that it has been applied. An absence from a published collection is a fact about publication, and Section 620M’s carve-out means the same absence is consistent with opposite states of the world. And whether Article 16 additionally requires intent is unsettled, and named here rather than resolved.
Conclusion
So: is the United States complicit in Israeli war crimes? Every instrument that would decide it is short, published and quotable, and together they answer a narrower question than the one people ask: who may find what, on which words, in which document.
The words are the finding. Article 16 is the only text defining complicity, it sets two conditions rather than one, and no state ratified it. The Arms Export Control Act answers with a closed list of purposes behind the word “solely,” and international humanitarian law is not on that list; when a use falls outside it, the Act names the President or a joint resolution and no court, then lets the same officer who finds the violation judge the assurance that ends it. The Foreign Assistance Act conditions assistance on a “consistent pattern” it never counts, and its one self-executing consequence attaches to a statement that arrived late. The Leahy law reaches a named unit on credible information, lifts on the recipient government’s own steps, and lets the Secretary of State keep the unit’s identity out of view on a justification that may be classified. The condition everyone attributes to American arms law is a presidential memorandum saying in terms that it should not be cited as required by treaty or custom. The Arms Trade Treaty’s two tests bind States Parties, and the depositary’s file records the United States telling the Secretary-General it is not going to be one.
A word can travel a long way ahead of its conditions. “Complicity” arrives in public argument carrying the authority of law, while the two conditions giving it content sit in a text nobody ratified, and the American provisions that might bite route every finding back to the office being asked about. When the vocabulary of a legal test outruns the machinery that could apply it, what is the public actually arguing about?
Frequently Asked Questions
Are the International Law Commission’s articles binding on the United States?
They are not a treaty, and no state has ratified them. The General Assembly annexed them to resolution 56/83 of 12 December 2001 and has commended them to governments since, without opening them for signature. Whatever authority they carry comes from how far they restate customary international law.
What is the difference between the two Leahy laws?
They sit in different titles and run to different officers. Section 620M turns on the Secretary of State’s credible information; 10 U.S.C. 362 turns on the Secretary of Defense’s and bars the use of Department of Defense funds.
Is there a separate United States statute about humanitarian access?
Yes. Section 620I of the Foreign Assistance Act bars assistance under that Act and the Arms Export Control Act to a country when it is made known to the President that its government restricts the delivery of United States humanitarian assistance, subject to a national security waiver.
Does the Arms Export Control Act define international humanitarian law anywhere?
Section 4 does not mention it. National Security Memorandum 20 borrows the Act’s definitions of “defense article” and “defense service” while adding a humanitarian-law assurance the Act does not contain.
Where can the text of the Geneva Conventions be read?
The United Nations Treaty Series records the four Conventions of 1949 at volume 75, numbers 970 to 973, where Common Article 1 appears in identical words in each.
Can a private party sue under any of these provisions?
National Security Memorandum 20 states in terms that it creates no right or benefit enforceable at law or in equity by any party against the United States. The statutes examined here create no private right of action.
Sources
- Arms Export Control Act, sections 3 and 4 (22 U.S.C. 2753 and 2754), 1968, as amended. Office of the Law Revision Counsel, United States Code, prelim edition stating the law in effect on 18 August 2026, uscode.house.gov. Enacted statute.
- Arms Export Control Act section 47 (22 U.S.C. 2794), definitions. Office of the Law Revision Counsel, United States Code, prelim edition, uscode.house.gov. Enacted statute.
- Arms Trade Treaty, 2013. Articles 6 and 7. Certified true copy of the treaty text deposited with the Secretary-General, United Nations Treaty Collection, chapter XXVI-8, treaties.un.org. Treaty text.
- Arms Trade Treaty, 2026. Depositary status list, chapter XXVI-8, recording the United States signature of 25 September 2013 and the communication received 18 July 2019. Treaty Section, Office of Legal Affairs, treaties.un.org, read 14 September 2026. Depositary record.
- Foreign Assistance Act section 502B (22 U.S.C. 2304), 1961, as amended. Human rights and security assistance. Office of the Law Revision Counsel, United States Code, prelim edition, uscode.house.gov. Enacted statute.
- Foreign Assistance Act section 620I (22 U.S.C. 2378-1), section added 1996. Prohibition on assistance to countries that restrict United States humanitarian assistance. Office of the Law Revision Counsel, United States Code, prelim edition, uscode.house.gov. Enacted statute.
- Foreign Assistance Act section 620M (22 U.S.C. 2378d), section added 2007. Limitation on assistance to security forces. Office of the Law Revision Counsel, United States Code, prelim edition, uscode.house.gov. Enacted statute.
- Geneva Conventions of 1949, Common Article 1. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field and the three accompanying Conventions. United Nations Treaty Series, volume 75, registration numbers 970 to 973, treaties.un.org. Treaty text.
- International Law Commission, 2001. Responsibility of States for Internationally Wrongful Acts, Articles 16, 19 and 41. Text adopted at the Commission’s fifty-third session and annexed to General Assembly resolution 56/83 of 12 December 2001, Office of Legal Affairs, legal.un.org. Primary instrument.
- National Security Memorandum 20, 2024. Safeguards and Accountability With Respect to Transferred Defense Articles and Defense Services. Daily Compilation of Presidential Documents, DCPD-202400098, Government Publishing Office, govinfo.gov. Primary and official record.
- Title 10, United States Code, section 362, 2014, as amended. Prohibition on use of funds for assistance to units of foreign security forces that have committed a gross violation of human rights. Office of the Law Revision Counsel, prelim edition, uscode.house.gov. Enacted statute.
- United States Government Publishing Office, 2026. Search of the Daily Compilation of Presidential Documents, the Compilation of Presidential Documents and the Federal Register, govinfo.gov, run 14 September 2026. Official record.