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 jus cogens 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.
II. The Duty to Refrain ... A. Defining D2R ... B. What D2R Is Not
III. The Sources of D2R ... A. The ILC’s Draft Articles on State Responsibility ... B. What Does State Practice Tell Us? ... C. More Specific Rule for Accessories After the Fact ... D. D2R in Multilateral Treaties
IV. Connection to the Responsibility to Protect (R2P) ... A. Defining R2P ... B. R2P’s Intrinsic Connection to D2R ... C. Why the Focus on R2P? ... D. Incorporating D2R into the Humanitarian Intervention Dilemma
V. Obstacles to Punishing State Accomplices ... A. The Methods of Enforcing International Law ... B. Inherent Obstacles to Enforcement of Human Rights Law ... C. The Collective Action Problem with Respect to State Complicity ... D. Unprincipled Jurisdictional Gaps
VI. Proposed Enforcement of State Accomplice Liability ... A. Bilateral Agreements Prohibiting State Complicity in Grave Crimes ... B. Overcoming the Veto Power of the Security Council
The Duty to Refrain: A Theory of State Accomplice Liability for Grave Crimes,
97 Neb. L. Rev. 120
Available at: https://digitalcommons.unl.edu/nlr/vol97/iss1/4