From Complicity to Due Diligence: When Do States Incur Responsibility for Their Involvement in Serious International Wrongdoing?
German Yearbook of International Law, Vol. 60 (2017), pp. 667-708
25 Pages Posted: 13 Mar 2018 Last revised: 8 Nov 2018
Date Written: March 13, 2018
Globalisation creates multiple challenges for the rule of law. States liaise in multiple ways and unfortunately not always for the common good. While the conventional rules of state responsibility are largely informed by an international order of coexistence where an internationally wrongful act is traced to a single state or a principal wrongdoer, realities look different today. There are many instances, in which more than one state is involved. If fundamental legal interests of the international community, such as the prohibition of genocide, other fundamental human rights and humanitarian standards, or the prohibition of the use of force are at stake, not only the main actors, accessories and bystanders incur responsibility for serious violations but other forms of involvement need to be addressed, too. Therefore, the article considers different modes of state involvement in serious violations of international law and the legal criteria for unlawful contributions. Giving special attention to participation below the level of complicity – when a State contributes to such serious violations without the respective positive knowledge – the author considers primary rules of international law that prohibit indirect participation, such as the duty to respect and ensure fundamental human rights. The focus on primary norms allows her to locate state responsibility for participation within the existing scheme of state responsibility without departing from the ILC rules on state responsibility (ARSIWA). The article argues in favour of a risk-based ex ante responsibility in order to prevent co-operation between States which violate fundamental legal norms of the international community. Accordingly, States incur responsibility for indirect participation if they do not exercise the necessary diligence to prevent such violations. Though due diligence is usually referred to when States fail to intervene in third party abuses it applies a fortiori in cases of active contributions. While the article concentrates on serious human rights violations it also refers to other fields of international law, including breaches of international humanitarian law. By specifying the legal parameters of due diligence as a general principle it also contributes to the scholarly debate on the content of due diligence in international law more generally.
Keywords: Due Diligence, Conspiracy, Modes of Participation, ARSIWA, Human Rights, International Humanitarian Law, State Responsibility, Aid or Assistance
JEL Classification: K33
Suggested Citation: Suggested Citation