“Complicity in International Law”: Author’s Response

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

Introduction

I am grateful to Oxford University Press and the editors of EJIL:Talk! for putting together this discussion and to Elies, Elizabeth, and Helmut for their contributions. I appreciate their engagement with my work. In this piece, I consider the central points in each of their pieces.

State Assistance in Practice

Elizabeth’s three examples – the provision of arms, the use of military bases, and the grant of financial and other assistance to the justice and human rights sectors – provide a helpful grounding for considering how often questions of complicity are arising in practice. Her contribution zeroes in on the difficulties relating to the nexus element and the fault element. Taking them in turn, there are slightly different difficulties here.

As to the nexus element, even if we agree on the normative standard there is the challenge of applying that standard across the myriad ways that states provide assistance to other states. We can quite easily imagine situations where the assistance is insufficiently connected to the principal wrong, just as we can easily imagine situations where the standard is met. Beyond those poles, things are very difficult. That might seem unsatisfactory, but here it is worth emphasising the relative newness of the rule – it is still embedding itself into customary practice. As it does so, we are likely to see the incremental development and clarification of a regime-specific test.

As to the fault element, by contrast, the initial problem lies on the normative level itself – the potential discrepancy between the textual standard of knowledge and the commentary’s reference to intent. This I address in Chapter 7 (pp. 159-162), and do not wish to revisit now. Instead, what I wish to pick up is Elizabeth’s point about transparency – regarding the provision of military bases: ‘an outsider is hard put to assess the knowledge of the British government of the extent of activities by the US in the absence of public information about all of the bilateral arrangements.’ In the book, I argue in favour of a standard of knowledge, including wilful blindness, partially on the basis of its promise as a workable standard. I remain convinced of that. Certainly, though, more attention should be paid to the importance of transparency in making that more promising legal standard a reality in practice. Looking forward, what is required is jurisdiction-specific attention to the political and legal avenues for obtaining information and accountability.

State and Individual Complicity

One question shared by Helmut and Elies concerns the treatment of individual and state complicity in the same framework. Each of their contributions foreshadows one potential response. Elies raises the possibility that the emergence of scholarship focusing on a shared perspective on international responsibility is sufficient justification for the book’s cross-disciplinary approach. Helmut notes that where state officials are complicit in an international crime, state responsibility is likely to ensue. Certainly, as I started the project, these two points informed my decision to consider individual and state complicity together.

Moreover, the fact that at times the law of state responsibility takes a significantly different approach from criminal complicity provided me with a helpful point of departure for further examination of the difference – the absence of state responsibility for instigation or incitement is one example. However, I take the point that the temptation provided by the comparative framework at times was too great to resist. This is Helmut’s worry about the use of the comparative framework for interpretive purposes. I emphasise at a number of points both that complicity rules are not (and ought not to be) monolithic, and that the contours of specific rules ought to be shaped by the needs and values of the particular regime. Moreover, the exploration in Chapter 2 of accessorial liability in English tort law takes this emphasis further. But I agree that care needs to be taken in transferring any analysis of complicity in individual criminal responsibility into the much more widely applicable rule in the law of state responsibility.

On reflection, I might have under-used the insights that could be drawn from domestic private law when thinking about complicity in the law of state responsibility. As Elies notes, I spent quite some time in Chapter 2 considering the tort of inducing breach of contract; this analysis sets up a frame for my criticism of the double obligation requirement in Chapter 7. However, for the most part, I did not take the domestic private law comparator any further, despite a rich strand of recent work on the subject. Although, again, I am conscious of the worry about inappropriate uses of a comparative framework of this kind, I wonder if deeper consideration of the debates concerning accessorial liability in private law could have shed light on the analysis of the rule in Article 16.

Fair Labelling and Complicity

Both Elies and Helmut draw attention to the book’s use of the principle of fair labelling as partial justification for its normative stance on the structure of complicity rules – with Helmut suggesting that, in preference to sovereignty, it may be grounded in the international rule of law, and Elies wondering what different dimensions it assumes in respect of state responsibility. This is an important point – outside of the punitive context of criminal law, the principle of fair labelling requires further thought. Nonetheless, it seems to me that its applicability is connected to the recognition of states as sovereign and independent international legal persons.

Perhaps, as Elies suggests, additional bite lies in the political and diplomatic consequences that different relationships to wrongdoing entail. As I note in the book, the ICJ’s decision in the Bosnian Genocide Case was reported by Reuters with the headline ‘Serbs Relieved, Bosnia Dismayed by Genocide Ruling’ and the BBC with the headline ‘Court Clears Serbia of Genocide.’ Cassese’s piece, for the Guardian, was entitled ‘A Judicial Massacre.’ These headlines followed despite the fact that the Court found Serbia responsible for failing to prevent genocide under the Genocide Convention. Although admittedly this was a case where the political sensitivities were as high as they could ever be, these reactions tell us that it is not only responsibility in general terms that matters.

Towards Moral Sophistication?

Let me turn to what Helmut calls the underlying normative project of the book. As I read it, there are two related concerns here. The first relates to the narrative of progress itself – both in how we read (and criticize) historical approaches and how we appraise the present. On this front, I agree that straightforward progress narratives may mislead, as they do in other areas of international law.

The second relates to the potentially expansive programme for complicity in the law of state responsibility engendered by the book’s normative defence of complicity rules. Here, Helmut points to my argument that Article 16 ought to encompass broad forms of complicity. I assume the concern here does not relate to kinds of material aid captured by the rule – as he has argued elsewhere, what matters is not the form of (material) complicity but the nexus between the aid and the wrongful act. Instead, I assume that the concern relates to my argument that the rule ought to capture instigation in addition to material aid, an argument that Elizabeth also doubts in passing.

In this respect, I do not dispute that the orthodox understanding excludes instigation, but I can see no reason that it should. Here, the comparative perspective of the book at least tips us off that this is an unconventional exclusion in how legal systems and regimes deal with complicity. Moreover, as I have argued elsewhere, there is a strong claim that, as a matter of positive law, a general prohibition on instigation can be founded on a general principle of law, as envisaged under Article 38(1)(c) of the Statute of the ICJ. It is hard to imagine a legal system allowing an actor who instigates another actor to do something that would be wrongful for both of them to escape responsibility.

But this dispute as to the forms of complicity captured by the rule is not at the centre of Helmut’s worry about the book’s expansive programme – the centre concerns the justification for the inclusion of the double obligation requirement in Article 16(b) of the Articles on State Responsibility. In the book, I doubt the inclusion of the double obligation for two reasons. First, it seems to underweight the value of the treaty commitment undertaken between the parties themselves. Second, it seems not to accord sufficient protection to the international community’s interests in the stability and integrity of treaty relations.

Nonetheless, I take the point that that there is an unexamined assumption here about the value of stability as the expense of change in the international legal system, allied to the risk of protecting established and potentially inequitable legal relations. This latter point is a theme in domestic scholarship concerning the tort of inducing breach of contract. One solution proposed in domestic literature would widen the justification defence for the third party; this seems inapposite to the international legal system given its current institutional arrangements. Clearly, this is a question on which more thought is required.

Conclusion

There remain a number of unanswered questions concerning complicity in international law – no doubt recently published work on the topic – in the law of state responsibility and international criminal law – will take us further. I look forward to continued engagement with the difficulties provoked by the range of ways that individuals and states participate in the wrongs of others.