Responsibility for Complicity in an Internationally Wrongful Act: Revisiting a Structural Norm
SHARES Conference “Foundations of Shared Responsibility in International Law,” November 2011
36 Pages Posted: 3 Nov 2012
Date Written: November 18, 2011
Abstract
This paper argues that the rule regulating complicity in the internationally wrongful act escapes the black and white distinction between primary and secondary norms in international law. Rather, it is a structural norm or a ‘norme de clôture’ of the international legal order ensuring that no entity can induce and support another to breach the latter’s obligations irrespective of their origin and character. The International Court of Justice, while declaring in the Bosnia Genocide case that the responsibility for aid or assistance is part of customary international law, followed closely the International Law Commission’s final product of codification as expressed in Article 16 of the Articles on Responsibility of States for Internationally Wrongful Acts. This paper suggests that the scope of responsibility for complicity may be more extensive. On the one hand, it questions whether complicity must always consist of positive actions in an attempt to shed light on the causality standards for allocating legal consequences between the aiding or assisting State and the wrongdoing State. On the other hand, it explores the extent of knowledge required for the State to incur responsibility for complicity. Pursuant to the ILC approach, an aiding or assisting State only engages its responsibility if subject to the relevant obligation breached by the aided or assisted State. The requirement of opposability is certainly an added value to the system of co-existence but a fiasco to a genuine legal order based on solidarity and rule of law.
Keywords: Complicity, state responsibility, aid or assistance, causality
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