Problem of the ‘Injured State’: Third-Party Countermeasures

Legally, the opening of countermeasures to humanitarian military action not only concerns the traditionally non-forceful nature, but also the traditionally bilateral nature of countermeasures. It will almost never be the case that a state is directly injured by another state inflicting gross human rights violations on its own population. The question analyzed in this chapter is if states not directly affected by the wrongful act may have standing to resort to countermeasures, which are by the wording of Art. 49.1 DARS only foreseen for injured states. This analysis departs from the recognition of the existence of erga omnes obligations and moves on to an evaluation of the ILC DARS as well as state practice.