A Path towards the Moral Sophistication of International Law? Some Remarks on Miles Jackson’s “Complicity in International Law”

This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

It is a great pleasure to contribute to this mini-symposium on Miles Jackson’s monograph on the notion of complicity in international law. The book is a further testament to the growing importance of questions of ‘shared responsibility’ in international law, ie the harmful cooperation of several actors.

In his elegantly written book, Miles Jackson makes several important contributions. In particular, he has brought a comparative approach to questions of complicity in international law. Whereas most existing books on complicity focus either on state responsibility or international criminal law, Jackson aims to transcend this boundary and develop an overarching framework for complicity in international law. While Jackson is of course mindful of the structural differences between the two areas, his comparative approach nonetheless calls for some further discussion.

A second most original aspect of the book is its move beyond an inter-state focus in its treatment of state complicity. Jackson analyses if and to what extent international law imposes state responsibility for complicity with non-state actors. In this latter regard, he convincingly argues against an approach based on attribution. The ILC Articles on State Responsibility (ASR) conceptualise attribution as a relationship of agency. In contrast, he rightly stresses the derivative character of complicity. Responsibility for complicity should thus not lead to an attribution of conduct of the main actor, but is about responsibility for the support that is rendered for the commission of a wrongful act. Convincingly, Jackson hence turns his attention to the substantive obligations of  non-state actors. If such actors (think of terrorists) are capable of violating rules of international law themselves, it is indeed a logical step to conceptualise support rendered by states to such non-state actors also in terms of complicity.

Comparing complicity in international criminal law and the law of state responsibility

There are good reasons to compare complicity in these two domains. Both the ASR and the Rome Statute include saving clauses according to which their provisions are without prejudice to questions of the respective other field. At the same time, a good argument can be made that at least in those situations in which a state official is held responsible under the rules of ICL for aiding and abetting the commission of an international crime, some form of state responsibility will most likely also arise.

Nonetheless, I have my doubts about two specific consequences of the path taken by Jackson. The first one relates to what he calls a ‘principle of fair labelling’. This principle militates, he writes, in favour of a clear distinction between different degrees of culpability in criminal law (at 22). At different points in his study, Jackson transfers the rationale of this principle to the inter-state level, anchoring it in the principle of sovereignty (at 22, 142). I am not convinced that state sovereignty provides the rationale for this need for differentiation between different degrees of responsibility.

For one, it reminds me of certain personalized understandings of the state holding ‘fundamental rights’ – something that was once a widely held view in international law but which has been largely overcome. Sovereignty as a legal concept is, as held by the Permanent Court of International Justice in its very first decision, the sum of a state’s rights and obligations under international law. As such, the principle of sovereignty cannot therefore, in my view, provide for an argument why a certain differentiation in the attribution of international responsibility is called for. What is more, if we carry this argument further to the largely parallel rules on the responsibility of international organizations, the question needs to be asked what the rationale of such a requirement of ‘fair labelling’ would be. Clearly sovereignty cannot be the answer here. A more convincing basis for such a principle of fair labelling might be found in the concept of the international rule of law.

Another reason why I am sceptical about some of the aspects of Jackson’s comparative approach is how he uses it for interpretive purposes. This comes to the fore when he discusses the respective subjective element of complicity in the law of state responsibility. Without going into the details of this discussion here, one of the arguments Jackson makes for a knowledge-based approach is that aiding and abetting under international criminal law is characterised by a mens rea requirement that is based on knowledge (at 50, 79). He contrasts this state of the law with the intent requirement which can be identified in the commentaries of the ILC to Article 16 ASR (at 159).

This argument requires scrutiny for a  number of reasons. First, the international criminal tribunals use the knowledge standard in the context of a mens rea standard which clearly requires intent (at 76 and, for instance, Article 25 of the Rome Statute). They therefore conceptualise the subjective standard to be a knowledge-based intent, akin to what some criminal lawyers would call dolus eventualis. Second, and more importantly, it is questionable whether any normative guidance for the law of state responsibility can be obtained here. After all, international criminal law imposes responsibility only for a limited set of core crimes. In contrast, Article 16 ASR is applicable throughout the whole range of international legal obligations – irrespective of whether a bilateral treaty of friendship and navigation is at stake or a multilateral human rights agreement. As I have argued elsewhere, the subjective element of Article 16 ASR can be attuned to the different primary rules which are at stake. What is more, different primary rules such as due diligence obligations, the principle of non-refoulement or the obligation to ensure the application of IHL under Common Article 1 of the 1949 Geneva Conventions allow to hold states responsible for support which would not meet the requirements of Article 16 ASR.

Towards moral sophistication?

The second part of my remarks relate to the underlying normative project of Jackson’s book. The author is outspoken that any legal system should provide for rules on complicity. At the outset, this claim is presented in a nuanced way. Jackson writes that ‘legal systems should hold accomplices responsible for their own contribution to the principal’s wrong, rather than for the wrong of their principal’ (at 31). At later points in his study (at 132), he identifies the degree of sophistication a legal system has acquired with the existence of rules on complicity, following an argument which Vaughan Lowe has made in a seminal article published in the early 2000s. What is more, Article 16 ASR is described by Jackson as a ‘radical leap in the morality of international law’ (at 135).

Jackson is mindful that this programme should not be carried too far. Thus, he writes early on in his monograph that it may ‘not be required to prohibit every form of participation in every legal wrong” (at 17). At the same time, his normative programme pushes him to adopt a rather broad interpretation of the forms of aid and assistance which are prohibited under Article 16 ASR. Coupled with his approach to look towards ICL for guidance, this leads to a rather expansive programme. This becomes apparent, for instance, when Jackson discusses the requirement under Article 16 (b) ASR according to which the aiding or assisting state is also bound by the obligation that the main actor has violated. He writes that ‘a broader complicity rule would protect the international community’s interests in the stability of international relations and the integrity of treaty commitments’ (at 167).

While this is of course a legitimate normative position, I would like to sound a note of caution about the slightly dismissive stance this represents towards the ‘earlier’ international law which did not include rules on complicity and would thus fall short in terms of standards of moral sophistication. It can be questioned whether ‘the stability of international relations and the integrity of treaty commitments’ depends primarily on the existence of a wide concept of complicity. Seen from Jackson’s perspective, constraining more actors in their behaviour by the rules of international law will lead to more stability in international relations. I have my doubts whether more responsibility for more actors will always lead to desired outcomes.

In his Allgemeine Staatslehre, published at the beginning of the 20^th century, Georg Jellinek argued that too much stability stifles change in the international realm. At the time, that may have appeared to be a self-interested argument formulated for rising powers who viewed the existing international legal order as the outcome of a particular power constellation. While the argument is thus not unproblematic, it resonates today. The liberal international order of the 1990s is under pressure – a pressure which is exercised at the same time by rising powers and by populist movements in (declining?) established powers. This raises the question of the future trajectory of international law and the role that the law of international responsibility should play in this regard.

Several scenarios are conceivable – a reassertion of the liberal post-cold war order or a retreat towards a more formal and state-oriented international legal order are just two of those scenarios. Jackson’s narrative positions the concept of complicity in a story of progress – how international law has overcome its previous moral limitations. This strikes me as potentially counterproductive. The progress narrative invites the thought that if more recent geological layers of the international legal order erode, their emanations in the law of state responsibility might also be carried away by strong surface winds. In the long-term perspective, a less ambitious concept of complicity might thus be more able to weather the storm that we seem to be facing.