The Duty to Refrain: a Theory of State Accomplice Liability for Grave Crimes

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 120. The Duty to Refrain: A Theory of State Accomplice Liability for Grave Crimes

The Duty to Refrain: A Theory of State Accomplice Liability for Grave Crimes

Rachel López(fn*)

ABSTRACT

In the modern era, as the cooperation between States in military and counter-terrorism efforts increases, so does the risk that a State will facilitate the grave crimes of another State through its political, military, or economic assistance. One of the most prominent recent examples is Russia's support to the Assad regime in Syria, despite the atrocities the Assad regime committed against its own people. This raises the question: What legal obligations do States have to refrain from assisting other States in committing grave international crimes?

This Article argues that much like there is an oft-cited responsibility to protect (R2P), which obligates States to protect the human rights of people in other countries when their own governments are unwilling or unable to do so, there is an analogous duty to refrain (D2R) from aiding and abetting other States who commit grave violations of human rights, like genocide and crimes against humanity. Drawing from existing sources of international law, this Article argues that D2R already constitutes a binding principle of international law. In addition, this Article makes a significant contribution to the current scholarship on State responsibility by exploring the factors that contribute to impunity for State complicity in international wrongdoing. The author contends that a narrower focus on State complicity in crimes that constitute violations of juscogens norms would strengthen its enforcement.

The Article then concludes by proposing novel ideas for more effective enforcement of D2R through bilateral agreements and the employment of sanctioning powers of the United Nations General Assembly under the Uniting for Peace Resolution, when the Security Council, whose members are at times complicit in grave international crimes, is unwilling or unable to act.

1

TABLE OF CONTENTS

I. Introduction .......................................... 121

II. The Duty to Refrain .................................. 124
A. Defining D2R ..................................... 124
B. What D2R Is Not .................................. 127

III. The Sources of D2R ................................... 128
A. The ILC's Draft Articles on State Responsibility . . . 130
B. What Does State Practice Tell Us? ................. 134
C. More Specific Rule for Accessories After the Fact. . . 139
D. D2R in Multilateral Treaties ...................... 140

IV. Connection to the Responsibility to Protect (R2P)...... 144
A. Defining R2P ...................................... 144
B. R2P's Intrinsic Connection to D2R ................. 146
C. Why the Focus on R2P? ........................... 147
D. Incorporating D2R into the Humanitarian Intervention Dilemma ............................. 148

V. Obstacles to Punishing State Accomplices ............. 151
A. The Methods of Enforcing International Law ....... 151
B. Inherent Obstacles to Enforcement of Human Rights Law ............................................... 152
C. The Collective Action Problem with Respect to State Complicity ........................................ 154
D. Unprincipled Jurisdictional Gaps .................. 156

VI. Proposed Enforcement of State Accomplice Liability. . . . 161
A. Bilateral Agreements Prohibiting State Complicity in Grave Crimes .................................. 161
B. Overcoming the Veto Power of the Security Council ................................................... 164

VII. Conclusion ............................................ 167

I. INTRODUCTION

A close look at the most egregious examples of human rights violations in recent times reveals a common trend: most governments that perpetrate these grave crimes do not act alone.(fn1) They often have help from other countries.(fn2) The examples are numerous. During the Cold War, the United States provided military aid, equipment, and training to the Guatemalan government, despite the mounting evidence of crimes against humanity and genocide reported by the Central Intelligence Agency and U.S. Department of State.(fn3) China continued to pro-

2

vide arms to the Sudanese government, even with the knowledge that Sudan would likely use them to perpetrate atrocities in Darfur.(fn4) Russia has continued to provide military support to the Assad regime in Syria, despite its widely condemned air strikes in Aleppo and likely use of chemical weapons against its own people.(fn5) The United States, the United Kingdom, and France have all provided logistical support and intelligence to a Saudi-led coalition whose airstrikes have killed numerous civilians.(fn6) What legal responsibility do these supporting countries bear for the crimes of their allies? Are there affirmative norms in international law that require States to refrain from providing assistance to other States if they know that it will be used to commit human rights abuses? Most critically, how do we punish State accomplices that aid and abet other States in committing mass atrocities?

This Article asserts that much like there is an emergent responsibility to protect (R2P) the human rights of another country's people when that country is unable or unwilling to do so, States also have, what I term, a duty to refrain (D2R) from assisting other States in their commission of grave crimes. Essentially, if States have a duty to act in order to prevent grave international crimes, then a fortiorari they must also have a duty to refrain from assisting other countries in committing grave international crimes that violate jus cogens norms.

3

While much scholarship has been devoted to R2P, it has barely touched on D2R. Over the last couple of years, legal scholars have become increasingly interested in the liability that attaches anytime a State is complicit in the wrongful conduct of other States.(fn7) However, the scholarship has focused on the more general rule, which prohibits States from assisting other States in acts that violate international law.(fn8) Yet, the scope of this rule is so broad that the contours of this general responsibility are murky. Moreover, the level of generality of the rule complicates its enforcement, a topic that has hardly been touched in the emergent literature.

In this Article, I articulate a more specific and well-defined duty to refrain from assisting in the violation of non-derogable jus cogens norms, such as the universal prohibitions on crimes against humanity, war crimes, genocide, slavery, and torture. While others have explored individual complicity under international criminal law and State responsibility for non-state actors, this Article focuses squarely on State complicity in the grave crimes of other States.(fn9) I urge legal scholars and policymakers to turn their sights to D2R as an effective complement to R2P.

This Article proceeds in six parts. In Part II, I define what D2R is and what D2R is not. In Part III, I lay out all of the legal sources that establish D2R as an emerging principle in international law. In Part IV, I argue that scholars have too readily focused on R2P, while overlooking the potential that a well-grounded D2R rule could have in curbing mass atrocities. While intervention by other States or the Security Council can escalate conflict, requiring States to refrain from assisting other State perpetrators decreases the resources at their disposal to perpetuate violence. I further argue that D2R is a logical com-

4

plement to R2P and explain how it overcomes some of the critiques leveled at R2P. Part V identifies the various obstacles to enforcing the general rule against State complicity in the wrongdoing of other States and explores how a more narrowly tailored focus on D2R would overcome some of these obstacles. Part VI proposes additional ways to enhance enforcement of State complicity in grave crimes through bilateral agreements and the sanctioning powers of the U.N. General Assembly pursuant to the United for Peace Resolution. Part VII concludes.

II. THE DUTY TO REFRAIN

A. Defining D2R

The need to address State complicity in grave crimes has increased urgency in the modern era, as the cooperation between States in armed conflict and counter-terrorism efforts becomes more common.(fn10) As joint endeavors between States grow, so does the possibility that a State will facilitate the grave crimes of other States through the provision of political, military, or economic aid. Indeed, in recent history, there are many notable examples of international wrongdoing by States carried out with the support of other States.(fn11) This is not terribly surprising. Most grave international crimes, particularly those involving mass atrocities, require extensive planning, broad coordination, and pooling of resources-such as weaponry and henchmen-that often cross borders. At the same time, States have frequently been reticent to put their own "boots on the ground"(fn12) in crisis situations. Consequently, States, reluctant to enmesh themselves in messy armed conflicts, have incentives to facilitate the acts of other States whose geopolitical interests align with their own. In some instances, the commission of mass atrocities would not have been possible without this external support. This reality raises a broader question: Should States be permitted to facilitate the...