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There is broad consensus within the international community that conditions in the al-Hol prison camp, which holds thousands of captured wives and children of ISIS fighters, constitute egregious international legal violations. Less clear, however, is which State (or States) may be held internationally responsible for those violations. Litigation at the European Court of Human Rights thus far has centered on the question of whether detainees’ States of nationality bear a positive obligation to repatriate or else violate extraterritorial obligations under regional human rights instruments. Yet the primary violations implicated by the camp likely go further than those contained within those treaties—and the States facilitating the continued operation of the camp are not only European States of nationality. The United States, along with several other members of the Global Coalition, have continued to assist the Syrian Democratic Forces in its management of the camp by funding, training, and equipping its members. Yet a finding of international responsibility for those States will likely be hampered by the limitations within the current framework provided by the Articles on the Responsibility of States for Internationally Wrongful Conduct (ASR). This Note seeks to do three things: first, to articulate which rules of international law the camp and its conditions violate; second, to pinpoint the “legal lacuna” in the ASR which allows for complicit States to evade responsibility; and third, to identify the potential solutions for bridging this legal gap.
