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Evacuation of Civilian Populations and Criminal Complicity: A Critical Appraisal of the February 2017 Report of the Syria Commission of Inquiry

Published on May 24, 2017        Author: 

In its February 2017 Report (A/HRC/34/64), the Independent International Commission of Inquiry on Syria made the bold statement that the evacuation of the civilian population from Eastern Aleppo, pursuant to an agreement between the Syrian government and the armed groups “amounts to the war crime of forced displacement” since it was made “for strategic reasons” and “not for the security of civilians or imperative military necessity.” (para. 93). A – perhaps unintended – consequence of this proposition would be that staff of NGOs or other non-state actors who assisted in this evacuation may be criminally liable as accomplices in this war crime.

I will argue here that this proposition is incorrect for basically two reasons. First, the Report does not make a persuasive argument that a war crime has been committed and thus there is no criminal conduct to which other individuals could have been contributed. Secondly, even if, arguendo, one assumes that the evacuation amounted to a war crime, to provide assistance in the evacuation of civilians does not constitute criminally relevant complicity.

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“Complicity in International Law”: Author’s Response

Published on April 14, 2017        Author: 

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. Read the rest of this entry…

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

Published on April 13, 2017        Author: 

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. Read the rest of this entry…

 
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New Insights and Structural Clarity: Miles Jackson’s “Complicity in International Law”

Published on April 12, 2017        Author: 

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

Recently, a number of studies have been published on complicity in international criminal law. In 2014, Neha Jain published a study on Perpetrators and Accessories in International Criminal Law. More recently, Marina Aksenova published a book on Complicity in International Criminal Law. As the titles of both books suggest, the main focus is on international criminal law (ICL). Aksenova, by way of contrast to individual complicity, does dedicate a chapter to State complicity.

Miles Jackson’s work, published in 2015, entitled Complicity in International Law takes a broader and a narrower approach than the books of Jain and Aksenova. While the latter conduct in-depth comparative criminal law analysis, Jackson’s focus is narrower; it is firmly on the international concept of complicity, as the title of the book appropriately suggests. His approach is broader in that, alongside individual complicity, he discusses State complicity. In comparative law terms, this could be qualified an ‘internal’ comparative analysis; discussing a legal concept of a different nature (criminal/individual v. civil/state) but within the same legal system: international law. This terminology is however misleading bearing in mind international law’s pluralist nature. The cross-disciplinary analysis of complicity, across ICL and IL, is more ‘external’ than any ICL-domestic criminal law comparison. And this is exactly the intriguing feature of the book: the juxtaposition of individual and state complicity. Do these concepts have enough in common to be usefully discussed within one and the same analytical framework? It is interesting to note that Helmut Aust in his fine and thorough study on Complicity and State Responsibility does not, by way of analogy, touch upon individual complicity in international law. Having said that, the fact that an emerging strand of scholarship approaches questions on international legal responsibility from a ‘shared perspective’ may be sufficient justification for this cross-disciplinary approach. Read the rest of this entry…

 
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“Complicity in International Law”: An Overview. Book Discussion

Published on April 12, 2017        Author: 

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

Introduction

No one is ever accused of being complicit in something good. Across areas of law, complicity – the idea of participation in another’s wrong – has received increased attention in the last decade. To take one domestic jurisdiction, England and Wales, accessorial liability in private law and criminal law has been subject to detailed re-evaluation. In international criminal law, the acquittal of Momcilo Perisic by the ICTY Appeals Chamber brought deep recrimination and comment. And in the law of state responsibility, the complicity rule in Article 16 of the Articles on State Responsibility is increasingly invoked in the context of the arms trade, counter-terrorism, and development aid.

This increased attention forms the background to the book. My overarching aim is to understand and analyse how international law regulates individual and state complicity. This overarching aim is supplemented by, where appropriate, critique as to the scope of the relevant rules and a normative claim as to how complicity rules ought to be structured. To this end, the book is structured as follows. Part A builds an analytical framework for understanding complicity rules and defends the normative claim mentioned above. Part B addresses complicity in international criminal law, including complicit omissions and command responsibility. Part C does two things. First, it considers state participation in the wrongdoing of other states and tracks the move from what I call specific complicity rules to the general rule on aid or assistance in Article 16 of the Articles on State Responsibility. Second, it addresses state participation in the actions of non-state actors. In doing so, it appraises the claim that complicity has permeated the secondary rules on the attribution of conduct in international law and proposes a non-state analogue to the rule in Article 16. Part D concludes. Read the rest of this entry…

 
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