4 avril 2017

OUVRAGE : V. Lanovoy, Complicity and its Limits in the Law of International Responsibility

Vladyslav LANOVOY

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.

Violation of an international obligation by one actor is often a result of complicity of another. Complicity is a product of the multifaceted ways in which States, international organisations and other actors interact in modern international affairs. States have assisted others in extraordinary rendition, secret detention and torture in the context of the so-called war on terror. Likewise, there have been cases of military aid for the unlawful use of force or aggression, lethal, techni- cal and financial assistance towards the commission of violations of inter- national human rights and humanitarian law, intelligence sharing and placing of military bases for drone attacks in third States, or financing of non-State actors that commit terrorist activities in a third State. There have also been less common allegations of complicity of international organisa- tions or their Member States in violations of international obligations in the context of joint military and peace-keeping operations. It is certain that many more instances have escaped public scrutiny, or will be revealed years after the event.

As Pilate in front of the crowd, an accomplice actor will seek safe haven from responsibility. This comes as no surprise in international law, a decentralised legal order with weak enforcement mechanisms and peren- nial institutional flaws. States and international organisations are respon- sible for actions or omissions attributable to them and which constitute a violation of their own obligations. This principle of independent respon- sibility is paramount throughout the International Law Commission’s (ILC) Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and the Articles on Responsibility of International Organ- izations (ARIO). However, this principle leaves little space for the con- sideration of how multiple actors may participate in an internationally wrongful act and what their share of responsibility for such participation should be. Complicity is one of the most common means of participating in an internationally wrongful act.

This book examines the existing legal framework of international responsibility for complicity (aid or assistance) as it applies to States and international organisations. What are the limits of complicity as a basis of responsibility in general international law? Does the existing legal frame- work effectively respond to instances of complicity in the internationally wrongful acts? Is it useful to have a general framework on responsibility for complicity when most practical examples of complicity to date appear to be covered by specific primary rules? These are some of the key questions posed in this book which will no doubt continue to generate lively debate in the years to come.

1. Introduction
2. The Origins of Complicity in International Law
3. The Regimes of Complicity in International Law
4. The ILC Rules on Responsibility for Complicity
5. Establishing Responsibility for Complicity
6. Legal Consequences and Implementation of Responsibility for Complicity
7. Complicity as a Basis of Attribution of Conduct
8. Conclusion

Vladislav LANOVOY, Complicity and its Limits in the Law of International Responsibility, Oxford, Hart Publishing,  2016 (440 pp.)

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