From Complicity to Due Diligence: When Do States Incur Responsibility for Their Involvement in Serious International Wrongdoing?
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From Complicity to Due Diligence: When Do States Incur Responsibility for Their Involvement in Serious International Wrongdoing?
German Yearbook of International Law, Vol. 60 (2018), Iss. 1 : pp. 667–707
2 Citations (CrossRef)
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Anja Seibert-Fohr, Hengstberger Professor of Public Law, International Law and Human Rights.
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2020
https://doi.org/10.1007/978-3-662-60564-6_1 [Citations: 1]
Abstract
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 serious violations without possessing 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 article argues in favour of a risk-based ex ante responsibility in order to prevent cooperation 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 cases of third party abuse, 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 thus contributes to the scholarly debate on the content of due diligence in international law more generally.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Anja Seibert-Fohr: From Complicity to Due Diligence: When Do States Incur Responsibility for Their Involvement in Serious International Wrongdoing? | 1 | ||
| I. Introduction | 1 | ||
| II. Modes of Participation and the Rules of State Responsibility: What Is Missing? | 6 | ||
| A. Participation in Serious Human Rights Abuses Below the Level of Complicity | 6 | ||
| B. Complicity in Human Rights Abuses and the Lex Specialis Hypothesis | 1 | ||
| III. Examining Contributions under Primary Rules of International Law | 1 | ||
| A. Point of Departure: Positive or Negative Obligations? | 1 | ||
| B. Due Diligence as a Yardstick for Indirect Participation | 1 | ||
| C. The Legal Parameters of Due Diligence | 2 | ||
| D. Applying Due Diligence to Indirect Participation | 3 | ||
| IV. Locating Indirect Participation Within the Framework of Responsibility | 3 | ||
| A. Direct Involvement | 3 | ||
| B. Complicity and Other Forms of Derived Responsibility | 3 | ||
| C. Indirect Participation and Non-Intervention | 3 | ||
| D. Complementarity Instead of Exclusiveness | 3 | ||
| V. Conclusion | 3 |