Complicity and its limits in the law of international responsibility / Vladyslav Lanovoy.
2016
KZ4080 .L36 2016 (Map It)
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Author
Title
Complicity and its limits in the law of international responsibility / Vladyslav Lanovoy.
Published
Oxford ; Portland, Oregon : Hart Publishing, 2016.
Call Number
KZ4080 .L36 2016
ISBN
9781782259404 (hardback : alk. paper)
1782259406 (hardback : alk. paper)
9781782259374 (ePDF)
9781782259381 (ePub)
1782259406 (hardback : alk. paper)
9781782259374 (ePDF)
9781782259381 (ePub)
Description
l, 383 pages ; 24 cm.
System Control No.
(OCoLC)939996311
Summary
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.--Book jacket.
Bibliography, etc. Note
Includes bibliographical references (pages 341-374) and index.
Available in Other Form
Online version: Lanovoy, Vladyslav, author. Complicity and its limits in the law of international responsibility Oxford ; Portland, Oregon : Hart Publishing, 2016 9781782259381 (DLC) 2016020005
Record Appears in
Table of Contents
Foreword
vii
Acknowledgements
xi
List of Abbreviations
xix
Table of Treaties
xxiii
Table of Cases
xxvii
Table of Other Authorities
xxxix
1.
Introduction
1
I.
Research Question
1
II.
Definition of Complicity in International Law
3
III.
Responsibility for Complicity in an Internationally Wrongful Act
4
IV.
Treatment of Responsibility for Complicity in Doctrine
9
V.
Model(s) of Responsibility for Complicity
10
VI.
Methodology
15
VII.
Role of Responsibility for Complicity in the International Legal Order
18
VIII.
Structure
20
2.
Origins of Complicity in International Law
22
I.
Introduction
22
II.
Antecedents of Complicity in the Operation of Neutrality
23
A.
Rights and Duties of Neutrals
24
B.
Prohibition of Aid or Assistance to Belligerents
29
III.
Complicity in the Writings of Founding Fathers of International Law
32
A.
Emergence of Responsibility as an Independent Legal Category
33
B.
Complicity---Attribution of Responsibility or Attribution of Conduct
35
IV.
Interim Conclusions
41
3.
Regimes of Complicity in International Law
46
I.
Introduction
46
II.
Complicity in International Criminal Law
47
A.
Complicity in the Nuremberg Charter
48
B.
Codification of Complicity in the Genocide Convention
51
C.
Aiding and Abetting in the Practice of the Ad Hoc Tribunals and the ICC
58
i.
Material Element (Actus Reus)
61
ii.
Mental Element (Mens Rea)
65
iii.
Complicity in the ICC Rome Statute
67
D.
Parallels to Complicity in the Law of International Responsibility
69
III.
Codification of Complicity in the Law of International Responsibility
71
A.
Complicity's Big Bang (Ago)
74
B.
Complicity's Revolution (Crawford)
80
C.
Complicity's Restatement (Gaja)
83
IV.
Interim Conclusions
90
4.
ILC Rules on Responsibility for Complicity
92
I.
Introduction
92
II.
General Regime of Complicity (Articles 16 ARSIWA and 14 ARIO)
93
A.
Preliminary Remarks
93
B.
Constituent Elements
94
i.
Threshold of Complicity
94
ii.
Knowledge of the Circumstances of the Internationally Wrongful Act
99
iii.
Complicity with a View to Facilitating the Commission of the Internationally Wrongful Act
101
iv.
Opposability of the Obligation Breached
103
III.
Aggravated Regime of Complicity (Articles 41(2) ARSIWA and 42(2) ARIO)
106
A.
Preliminary Remarks
106
B.
Constituent Elements of the Obligation of Non-assistance
110
i.
Existence of a Serious Breach of Peremptory Norm of International Law
110
ii.
Operation of the Obligation Not to Render Aid or Assistance
115
IV.
Complicity of States in an Internationally Wrongful Act of the International Organisation (Article 58 ARIO)
121
V.
Complicity and Other Forms of Shared or Ancillary Responsibility
138
A.
Other Forms of Indirect Attribution of Responsibility
138
i.
Direction and Control
141
ii.
Coercion
143
iii.
Circumvention of International Obligations
144
B.
Joint and Several Responsibility
147
i.
Separability of International Responsibility
152
ii.
Wrongful Acts Committed by a Common Organ or Jointly Run Operations
158
VI.
Interim Conclusions
161
5.
Establishing Responsibility for Complicity
162
I.
Introduction
162
II.
Material Element
165
A.
Content of Complicity and its Link to the Principal Wrongful Act
166
i.
Comments of States and International Organisations
166
ii.
Fattispecie of Complicity in Practice
172
a.
Delivering Military Aid or Assistance to States and Non-State Actors
172
b.
Delivering Aid or Assistance Pursuant to a Treaty or Export Licences
174
c.
Authorising or Failing to Object to the Use of Territory
175
d.
Financing and Granting Export Credit Guarantees
176
e.
Providing Technical Assistance, Intelligence and Personnel
178
f.
Delivering Aid or Assistance in the Context of Multinational Military Intervention
180
g.
Extraditing Foreign Nationals
183
iii.
Preliminary Conclusions
184
B.
Content of Complicity in Primary Norms
186
i.
Arms Control Treaties Prohibiting Complicity
186
a.
Chemical Weapons Convention
186
b.
Convention on the Prohibition of Anti-personnel Mines
187
c.
Convention on Cluster Munitions
191
ii.
Rules Prohibiting Complicity in the Use of Force
193
a.
Complicity in the Violations of Jus ad Bellum
194
1.
Article 3(f) of the Declaration on Aggression
194
2.
Article 2(5) UN Charter
198
3.
Modern Regulation of Neutrality
202
4.
Obligations of Due Diligence
203
5.
Concluding Remarks
204
b.
Complicity in the Violations of Jus in Bello
205
iii.
Primary Rules Prohibiting Complicity in Human Rights Violations
208
C.
Complicity and Due Diligence: Overlap or Parallel Functioning?
210
i.
Knowledge-based Distinction
212
ii.
Character and Control-based Distinction
214
iii.
Implications for the Material Scope of Complicity
216
D.
Concluding Remarks
217
III.
Cognitive Element: Knowledge and/or Intention?
218
A.
Knowledge: `Circumstances of the Internationally Wrongful Act'
221
B.
Intention: `With the View to Facilitating the Commission of the Wrongful Act'
227
C.
Normative Solution(s)
234
IV.
Opposability Element
240
A.
Importing the Pacta Tertiis Rule: Is it Appropriate in the Law of International Responsibility?
241
B.
Opposability Element: A Requiem of Responsibility for Complicity?
250
i.
Character of the Obligation Breached
254
ii.
Moment in Time for Assessing the Opposability Requirement
255
V.
Interim Conclusions
258
6.
Legal Consequences and Implementation of Responsibility for Complicity
261
I.
Introduction
261
II.
Legal Consequences and Content of Responsibility for Complicity
263
A.
Cessation (Articles 30(a) ARSIWA/ARIO)
264
B.
Assurances and Guarantees of Non-repetition (Articles 30(b) ARSIWA/ARIO)
266
C.
Reparation (Articles 31ARSIWA/ARIO)
269
i.
Causal Analysis---Linking Injury to the Wrongful Conduct
271
a.
ILC's Approach to Causation in General
272
b.
Applying Causal Tests to Complicity
275
c.
Multiple Chains of Causation and Attenuation of Responsibility
279
ii.
Forms of Reparation
281
a.
Restitution (Articles 35 ARSIWA/ARIO)
281
b.
Compensation (Articles 36 ARSIWA/ARIO)
282
c.
Satisfaction (Articles 37 ARSIWA/ARIO)
285
III.
Implementation of Responsibility for Complicity
288
A.
Invocation of Responsibility for Complicity
288
B.
Countermeasures Against Complicit States or International Organisations
293
C.
Responsibility for Complicity in Consent-based Dispute Settlement
300
IV.
Interim Conclusions
304
7.
Complicity as a Basis of Attribution of Conduct
306
I.
Introduction
306
II.
Existing Grounds of Attribution of Conduct
310
III.
Complicity Filling the Gaps in the Current Regime of Attribution
319
IV.
Interim Conclusions
328
8.
Conclusion
330
I.
Complicity and its Limits in the Law of International Responsibility
330
II.
Revised Model of Complicity: From Concept to Function?
335
Bibliography
341
Index
375