Complicity and its Limits in the Law of International Responsibility

by Vladyslav Lanovoy

Overview

This book examines the responsibility of States and international organizations for complicity (aid or assistance) in an internationally wrongful act. Despite the recognition of responsibility for complicity as a rule of customary international law by the International Court of Justice, this book argues that the effectiveness and utility of this form of responsibility is fraught with systemic and operational limits. These limits include a lack of clarity in its constituent elements, its co-existence with primary rules prohibiting complicity and the obligations of due diligence, its implementation and the underlying causal tests, its uncertain relationship to other forms of shared and indirect responsibility, and its potential as a form of attribution of conduct. This book submits that the content and elements of this form of responsibility need adjustments to respond more effectively to the phenomenon of complicity in international affairs.

Product Details

ISBN-13:	9781509926770
Publisher:	Bloomsbury Academic
Publication date:	01/24/2019
Series:	Studies in International Law
Pages:	440
Product dimensions:	6.14(w) x 9.21(h) x 0.88(d)

About the Author

Vladyslav Lanovoy is an Associate Legal Officer at the International Court of Justice and was former Assistant Legal Counsel at the Permanent Court of Arbitration. He is admitted as a Solicitor in England & Wales and holds a PhD in International Law from the Graduate Institute of International and Development Studies in Geneva.

Table of Contents

Foreword vii

Acknowledgements xi

List of Abbreviations xix

Table of Treaties xxiii

Table of Cases xxvii

Table of Other Authorities xxxix

1 Introduction 1

I Research Question 1

II The Definition of Complicity in International Law 3

III Responsibility for Complicity in an Internationally Wrongful Act 4

IV The Treatment of Responsibility for Complicity in Doctrine 9

V The Model(s) of Responsibility for Complicity 10

VI Methodology 15

VII The Role of Responsibility for Complicity in the International Legal Order 18

VIII Structure 20

2 The Origins of Complicity in International Law 22

I Introduction 22

II The Antecedents of Complicity in the Operation of Neutrality 23

A Rights and Duties of Neutrals 24

B The Prohibition of Aid or Assistance to Belligerents 29

III Complicity in the Writings of Founding Fathers of International Law 32

A The Emergence of Responsibility as an Independent Legal Category 33

B Complicity-Attribution of Responsibility or Attribution of Conduct 35

IV Interim Conclusions 41

3 The Regimes of Complicity in International Law 46

I Introduction 46

II Complicity in International Criminal Law 47

A Complicity in the Nuremberg Charter 48

B Codification of Complicity in the Genocide Convention 51

C Aiding and Abetting in the Practice of the Ad Hoc Tribunals and the ICC 58

i Material Element (Actus Reus) 61

ii Mental Element (Mens Rea) 65

iii Complicity in the ICC Rome Statute 67

D Parallels to Complicity in the Law of International Responsibility 69

III Codification of Complicity in the Law of International Responsibility 71

A Complicity's Big Bang (Ago) 74

B Complicity's Revolution (Crawford) 80

C Complicity's Restatement (Gaja) 83

IV Interim Conclusions 90

4 The ILC Rules on Responsibility for Complicity 92

I Introduction 92

II General Regime of Complicity (Articles 16 ARSIWA and 14 ARIO) 93

A Preliminary Remarks 93

B Constituent Elements 94

i The Threshold of Complicity 94

ii Knowledge of the Circumstances of the Internationally Wrongful Act 99

iii Complicity with a View to Facilitating the Commission of the Internationally Wrongful Act 101

iv Opposability of the Obligation Breached 103

III Aggravated Regime of Complicity (Articles 41(2) ARSIWA and 42(2) ARIO) 106

A Preliminary Remarks 106

B Constituent Elements of the Obligation of Non-assistance 110

i The Existence of a Serious Breach of Peremptory Norm of International Law 110

ii The Operation of the Obligation Not to Render Aid or Assistance 115

IV Complicity of States in an Internationally Wrongful Act of the International Organisation (Article 58 ARIO) 121

V Complicity and Other Forms of Shared or Ancillary Responsibility 138

A Other Forms of Indirect Attribution of Responsibility 138

i Direction and Control 141

ii Coercion 143

iii Circumvention of International Obligations 144

B Joint and Several Responsibility 147

i Separability of International Responsibility 147

ii Wrongful Acts Committed by a Common Organ or Jointly Rim Operations 158

VI Interim Conclusions 161

5 Establishing Responsibility for Complicity 162

I Introduction 162

II Material Element 165

A The Content of Complicity and its Link to the Principal Wrongful Act 166

i Comments of States and International Organisations 166

ii The Fattispecie of Complicity in Practice 172

a Delivering Military Aid or Assistance to States and Non-State Actors 172

b Delivering Aid or Assistance Pursuant to a Treaty or Export Licences 174

c Authorising or Failing to Object to the Use of Territory 175

d Financing and Granting Export Credit Guarantees 176

e Providing Technical Assistance, Intelligence and Personnel 178

f Delivering Aid or Assistance in the Context of Multinational Military Intervention 180

g Extraditing Foreign Nationals 183

iii Preliminary Conclusions 184

B The Content of Complicity in Primary Norms 186

i Arms Control Treaties Prohibiting Complicity 186

a The Chemical Weapons Convention 186

b The Convention on the Prohibition of Anti-personnel Mines 187

c The Convention on Cluster Munitions 191

ii Rules Prohibiting Complicity in the Use of Force 193

a Complicity in the Violations of Jus ad Bellum 194

1 Article 3(f) of the Declaration on Aggression 194

2 Article 2(5) UN Charter 198

3 Modern Regulation of Neutrality 202

4 Obligations of Due Diligence 203

5 Concluding Remarks 204

b Complicity in the Violations of Jus in Bella 205

iii Primary Rules Prohibiting Complicity in Human Rights Violations 208

C Complicity and Due Diligence: Overlap or Parallel Functioning? 210

i Knowledge-based Distinction 212

ii Character and Control-based Distinction 214

iii Implications for the Material Scope of Complicity 216

D Concluding Remarks 217

III Cognitive Element: Knowledge and/or Intention? 218

A Knowledge: 'Circumstances of the Internationally Wrongful Act' 221

B Intention: 'With the View to Facilitating the Commission of the Wrongful Act' 227

C Normative Solution(s) 234

IV Opposability Element 240

A Importing the Pacta Tertiis Rule: Is it Appropriate in the Law of International Responsibility? 241

B Opposability Element: A Requiem of Responsibility for Complicity? 250

i The Character of the Obligation Breached 254

ii The Moment in Time for Assessing the Opposability Requirement 255

V Interim Conclusions 258

6 Legal Consequences and Implementation of Responsibility for Complicity 261

I Introduction 261

II Legal Consequences and Content of Responsibility for Complicity 263

A Cessation (Articles 30(a) ARSIWA/ARIO) 264

B Assurances and Guarantees of Non-repetition (Articles 30(b) ARSIWA/ARIO) 266

C Reparation (Articles 31 ARSIWA/ARIO) 269

i Causal Analysis-Linking Injury to the Wrongful Conduct 271

a The ILC's Approach to Causation in General 272

b Applying Causal Tests to Complicity 275

c Multiple Chains of Causation and Attenuation of Responsibility 279

ii Forms of Reparation 281

a Restitution (Articles 35 ARSIWA/ARIO) 281

b Compensation (Articles 36 ARSIWA/ARIO) 282

c Satisfaction (Articles 37 ARSIWA/ARIO) 285

III Implementation of Responsibility for Complicity 288

A Invocation of Responsibility for Complicity 288

B Countermeasures Against Complicit States or International Organisations 293

C Responsibility for Complicity in Consent-based Dispute Settlement 300

IV Interim Conclusions 304

7 Complicity as a Basis of Attribution of Conduct 306

I Introduction 306

II Existing Grounds of Attribution of Conduct 310

III Complicity Filling the Gaps in the Current Regime of Attribution 319

IV Interim Conclusions 328

8 Conclusion 330

I Complicity and its Limits in the Law of International Responsibility 330

II A Revised Model of Complicity: From Concept to Function? 335

Bibliography 341

Index 375

Editorial Reviews

...we consider to be noteworthy how the author has treated the following three aspects: (i) the relationship between complicity and several responsibility; (ii) the overlapping between complicity and due diligence obligations; and (iii) the legal effects bearing upon the complicit State.

This book is likely to spark debate amongst professionals in both law and politics. It also offers a snippet of what the law in this area could look like in the future. The ideas contained in the book are a result of rigorous research, objectively applied and insightfully explained. Complicity and Its Limits in the Law of International Responsibility is a thought-provoking work that confronts a status quo permeating much of international law.
Italian Yearbook of International Law

This is an extremely stimulating book that provides a set of comprehensive and mature answers to the contemporary questioning on complicity in international law, pointing to a true legal order rather than a heterogeneous collection of so-called 'fragmented' rules of law.
International and Comparative Law Quarterly

From the Publisher