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Complicity in International Law 1st Edition Miles
Jackson Digital Instant Download
Author(s): Miles Jackson
ISBN(s): 9780198736936, 0198736932
Edition: 1
File Details: PDF, 2.42 MB
Year: 2015
Language: english
OX F OR D MONO G R A PH S I N
I N T E R N AT ION A L L AW
General Editors
PROF E S S OR C AT H E R I N E R E D G W E L L
Chichele Professor of International Law,
All Souls College, Oxford
PRO F E S S O R DA N S A RO O S H I
Professor of Public International Law at the University of Oxford and
Senior Research Fellow of Queen’s College, Oxford
PRO F E S S O R S T E FA N TA L M O N
Director of the Institute of Public International Law at the University of Bonn and
Supernumerary Fellow of St Anne’s College, Oxford
Complicity in International Law

OX F OR D MO N O G R A PH S I N
I N T E R N AT IO N A L L AW
The aim of this series is to publish important and original pieces of research on
all aspects of international law. Topics that are given particular prominence
are those which, while of interest to the academic lawyer, also have important
bearing on issues which touch the actual conduct of international relations.
Nonetheless, the series is wide in scope and includes monographs on the
history and philosophical foundations of international law.
R ECENT TITLES IN THE SER IES

Treaties on Transit Pipelines and Countermeasures
Danae Azaria
Corporate Obligations under International Law
Markos Karavias
A Contemporary Concept of Monetary Sovereignty
Claus D Zimmermann
Formalism and the Sources of International Law
A Theory of the Ascertainment of Legal Rules
Jean d’Aspremont
Extraterritorial Application of Human Rights Treaties
Law, Principles, and Policy
Marko Milanovic
Applicable Law in Investor-State Arbitration
The Interplay Between National and International Law
Hege Elisabeth Kjos
Disobeying the Security Council
Countermeasures against Wrongful Sanctions
Antonios Tzanakopoulos
The International Minimum Standard and Fair and
Equitable Treatment
Martins Paparinskis
Maritime Security and the Law of the Sea
Natalie Klein
The Margin of Appreciation in International Human Rights Law
Deference and Proportionality
Andrew Legg
Complicity in
International Law
M I L E S J AC K S ON
1
1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Miles Jackson 2015
The moral rights of the author have been asserted
First Edition published in 2015
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2014959893
ISBN 978–0–19–873693–6
Printed and bound by
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Jacket illustration: Getty Images © Arrville
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Acknowledgements
Complicity is a subject that lends itself to an appreciation of assistance and

encouragement. This book, which grew out of the doctoral thesis I defended
at the University of Oxford in November 2013, depended on a great deal
of both.
First and foremost, I would like to thank Professor Dapo Akande for his
direction and advice on the thesis, both of which were indispensable, and for
his warm support and friendship beyond it. I owe him a great deal.
I owe an intellectual debt to those who taught me international law, in
particular Professor Stefan Talmon, for his rigour and inspiration many years
ago, and Professors Ryan Goodman and William Alford. In addition, I am
immensely grateful, both personally and professionally, to Professor Liora
Lazarus.
I am also thankful to my examiners, Professors Andrew Ashworth and André
Nollkaemper, and all at the University of Oxford and elsewhere who discussed
drafts, chapters, and ideas with me: Sir Frank Berman, Professor Michael
Bohlander, Professor Sandra Fredman, Professor John Gardner, Professor Guy
Goodwin-Gill, Professor Imogen Goold, Professor Doug Husak, Professor
Nina Jørgensen, Dr Maris Köpcke Tinturé, Professor Vaughan Lowe, Professor
Catherine Redgwell, Professor Antonios Tzanakopoulos, and Professor Stefan
Vogenauer.
I would like to thank Farid Ahmadov, Nick Friedman, Ryan Goss, Claire
Hewer, Sotirios-Ioannis Lekkas, Thomas Liefländer, Kubo Mačák, Travers
McLeod, Dhvani Mehta, Rob Mullins, Brid Ni Ghráinne, Nikki Palmer, and
Laith Tapper for their friendship, help, and advice along the way. I am also
immensely grateful to Anna Begemann, Caitlin Goss, and Natasha Simonsen,
all of whom read the entire draft and for whose comments it is vastly better.
I am thankful to Oxford University Press and its Delegates, and person-
ally to Emma Endean, Merel Alstein, and John Louth for their support and
work in turning the draft into a book. In addition, I appreciate all of the
work that Dhanuj Nair of Newgen put into shepherding the project to com-
pletion and Cheryl Prophett’s excellent copy-editing.
This project would not have commenced without the generosity of the
Rhodes Trust. I am grateful to all at Rhodes House, especially Mary Eaton,
John Gee, Don Markwell, Colin Page, and Bob Wyllie. In turning my thesis
into this book, I was supported by the Global Justice Research Fellowship at
vi Acknowledgements
St Anne’s College; I am grateful to Don Ferencz of the Global Institute for
the Prevention of Aggression for his support for the fellowship.
I am also indebted to the staff of the Law Faculty at the University of
Oxford, the University’s many libraries and librarians, and to University
College, Oxford, and St Anne’s College, Oxford.
Finally, I am deeply grateful to my family for their love and support, and
to Emily Uecker for those and much more.
MMJ
Oxford, September 2014
Table of Contents
Table of CasesÂ€ xi
Table of TreatiesÂ€ xvii
List of AbbreviationsÂ€ xxi
PA RT A.â•‡ A THEORY OF COMPLICIT YÂ€

1. IntroductionÂ€ 3
1.1. IntroductionÂ€ 3
1.2. The Structure of the WorkÂ€ 4
1.3. The Scope of the WorkÂ€ 7
2. The Structure of ComplicityÂ€ 10

2.2. A Definition of ComplicityÂ€ 10
2.3. The Wrongness of ComplicityÂ€ 12
2.4. Structuring Complicity RulesÂ€ 17
2.5. Prohibiting Complicity: An Analytical Framework 31
2.6. ConclusionÂ€ 55
PA RT B.â•‡ COMPLICIT Y IN INTER NATIONA L

CR IMINA L L AWÂ€
3. Individual Criminal ResponsibilityÂ€ 59
3.1. Introduction 59
3.2. The Scope of Part B 60
3.3. The Principle of Individual Criminal Responsibility 62
3.4. Conclusion 65
4. Archetypal Doctrines of Complicity in International
Criminal LawÂ€ 66
4.2. InstigationÂ€ 66
4.3. Aiding and AbettingÂ€ 69
viii Table of Contents
4.4. The Structure of Complicity in International
Criminal Law 86
4.5. Assessing the Rules Within the Analytical Framework 91
4.6. Complicity in Genocide—A Coda for Non-Imputational
Complicity 93
4.7. Conclusion 97
5. Omissions and Complicity in International Criminal Law 98
5.2. Aiding and Abetting By Omission 98
5.3. Command Responsibility 110
5.4. Conclusion to Part B 120
PA RT C. STATE COMPLICIT Y IN
INTER NATIONA L L AW
6. State Complicity—A Framework 125
6.1. State Complicity in State Wrongdoing 125
6.2. State Participation in the Acts of Non-State Actors—
A Conceptual Difficulty 127
6.3. The Role of Complicity? 131
6.4. The Structure of Part C 132
7. State Complicity in the Internationally Wrongful Act of

Another State 135
7.2. State Complicity in Aggression—A Specific
Complicity Rule 136
7.3. A General Complicity Rule—Article 16 ARSIWA 147
7.4. Conclusion 174
8. State Complicity, Non-State Actors, and Attribution 176

8.2. Attribution in International Law—Baselines 177
8.3. State Participation in Terrorist Attacks and the
Rules of Attribution 179
8.4. State Participation in Human Rights Violations and the
Rules of Attribution 190
8.5. Conclusion 200
Table of Contents ix
9. State Complicity and the Obligations of Non-State ActorsÂ€ 201
9.2. State Complicity in Genocide—A Specific RuleÂ€ 202
9.3. A General Rule?Â€ 214
9.4. ConclusionÂ€ 216
PA RT D.â•‡ CONCLUSIONÂ€
10. ConclusionÂ€ 219
BibliographyÂ€ 223
Index 237
Table of Cases
INTERNATIONAL COURTS AND TRIBUNALS

International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43. . . . 6, 130–2,
151, 154–6, 160, 172, 178–9, 187, 202–13
Armed Activities on the Territory of the Congo (Democratic Republic of
Congo v Uganda) (Merits) [2005] ICJ Rep 168. . . . . . . . . . . . 128, 136, 146, 178, 180–1, 210
Case of the Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom
and United States of America) (Preliminary Question) [1954] ICJ Rep 19 . . . . . 125–6, 171–2
Corfu Channel (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4 . . . . . . . . . . . . . . . 130, 189
East Timor (Portugal v Australia) [1995] ICJ Rep 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 171
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970)
(Advisory Opinion) [1971] ICJ Rep 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep 136. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996]
ICJ Rep 226. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 189
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States) (Merits) [1986] ICJ Rep 14. . . . . . 146, 178–9, 189, 193, 210, 215
United States Diplomatic and Consular Staff in Tehran (United States of
America v Iran) (Merits) [1980] ICJ Rep 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Permanent Court of International Justice

Certain Questions Relating to Settlers of German Origin in the Territory Ceded by
Germany to Poland (Advisory Opinion) [1923] PCIJ Series B No 6. . . . . . . . . . . . . . . . . . 177
International Criminal Court

Prosecutor v Bemba Gombo (Decision on the Confirmation of Charges) ICC-01/05-01/08
(15 June 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115–9
Prosecutor v Katanga, Chui (Decision on the Confirmation of Charges) ICC-01/04-01/07
(30 September 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Prosecutor v Chui (Trial Chamber Judgment) ICC-01/04-02/12 (18 December 2012) ��61, 65,
68, 87, 90
Prosecutor v Katanga (Trial Chamber Judgment) ICC-01/04-01/07 (7 March 2014)�� 61, 64–5,
68, 87, 90
Prosecutor v Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04-01/06
(29 January 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 64–5, 106
Prosecutor v Lubanga Dyilo (Trial Chamber Judgment) ICC-01/04-01/06
(14 March 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64–5, 68, 87, 90
Prosecutor v Mbarushimana (Decision on the Confirmation of Charges) ICC-01/04-01/10
(16 December 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 99
xii Table of Cases
Prosecutor v Ntaganda (Decision on the Confirmation of Charges) ICC-01/04-02/06
(9 June 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67–8
Prosecutor v Ruto, Kosgey, Sang (Decision on the Confirmation of Charges) ICC-01/09-01/11
(23 January 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
International Criminal Tribunal for Rwanda

Prosecutor v Akayesu (Trial Chamber Judgment) ICTR-96-4-T
(2 September 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 79, 93, 95
Prosecutor v Akayesu (Appeals Chamber Judgment) ICTR-96-4
(1 June 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Prosecutor v Karemera, Ngirumpatse, Nzirorera (Trial Chamber Decision on Defence
Motions Challenging the Pleading of a Joint Criminal Enterprise in a Count of
Complicity in Genocide in the Amended Indictment) ICTR-98-44-T
(23 May 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94–5
Prosecutor v Mpambara (Trial Chamber Judgment) ICTR-01-65-T
(11 September 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Prosecutor v Nahimana, Barayagwiza, Ngeze (Appeals Chamber Judgment)
ICTR-99-52-A (28 November 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 61, 66–7
Prosecutor v Ntagerura, Bagambiki, Imanishimwe (Trial Chamber Judgment) ICTR-99-46-T (25
February 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Prosecutor v Ntakirutimana, Ntakirutimana (Appeals Chamber Judgment)
ICTR-96-10-A & ICTR-96-17-A (13 December 2004) . . . . . . . . . . . . . . . . . . . . . . . . 70, 79
Prosecutor v Rutaganira (Trial Chamber Judgment) ICTR-95-1C-T (14 March 2005) . . . . . 103–4
Prosecutor v Semanza (Trial Chamber Judgment) ICTR-97-20-T (15 May 2003) . . . . . . . 66, 93–4
International Criminal Tribunal for the former Yugoslavia

Prosecutor v Aleksovski (Trial Chamber Judgment) IT-95-14/1-T (25 June 1999). . . . . . . . . . . . . 71
Prosecutor v Blagojević, Jokić (Trial Chamber Judgment) IT-02-60-T
(17 January 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 74, 94
Prosecutor v Blagojević, Jokić (Appeals Chamber Judgment) IT-02-60-A
(9 May 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72–3, 79, 108
Prosecutor v Blaškić (Trial Chamber Judgment) IT-95-14-T (3 March 2000). . . . . . . . . . . . . . . . 71
Prosecutor v Blaškić (Appeals Chamber Judgment) IT-95-14-A
(29 July 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 70, 73, 75, 99
Prosecutor v Brđanin (Trial Chamber Judgment) IT-99-36-T (1 September 2004) . . . . . . . . 71, 94
Prosecutor v Brđanin (Appeals Chamber Judgment) IT-99-36-A (3 April 2007). . . . . . . . . . 71, 73
Prosecutor v Erdemović (Appeals Chamber Judgment) IT-96-22-A (7 October 1997). . . . . . 49, 85
Prosecutor v Furundžija (Trial Chamber Judgment) IT-95-17/1-T (10 December 1998) . . . . . 70–1
Prosecutor v Hadžihasanović, Alagić, Kubura (Appeals Chamber Decision on
Interlocutory Appeal Challenging Jurisdiction in Relation to Command
Responsibility) IT-01-47-AR72 (16 July 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Prosecutor v Halilović (Trial Chamber Judgment) IT-01-48-T (16 November 2005). . . 112–3, 115
Prosecutor v Haradinaj, Balaj, Brahimaj (Appeals Chamber Judgment) IT-04-84-A
(19 July 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 76–8
Prosecutor v Kordić, Čerkez (Appeals Chamber Judgment) IT-95-14/2-A
(17 December 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66–7
Prosecutor v Krnojelac (Appeals Chamber Judgment) IT-97-25-A (17 September 2003). . . . . . 113
Prosecutor v Krstić (Trial Chamber Judgment) IT-98-33-T (2 August 2001) . . . . . . . . . . . . 72, 204
Prosecutor v Krstić (Appeals Chamber Judgment) IT-98-33-A
(19 April 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79–80, 89, 94, 96
Table of Cases xiii
Prosecutor v Kunarac, Kovač, Vuković (Trial Chamber Judgment) IT-96-23-T &
IT-96-23/1-T (22 February 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 92, 212
Prosecutor v Kupreškić et al (Trial Chamber Judgment) IT-95-16-T
(14 January 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Prosecutor v Kvočka (Trial Chamber Judgment) IT-98-30/1-T (2 November 2001). . . . . . . . . . . 66
Prosecutor v Lukić, Lukić (Appeals Chamber Judgment) IT-98-31/1-A
(4 December 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 83
Prosecutor v Mrkšić, Radić, Šljivančanin (Trial Chamber Judgment) IT-95-13/1-T
(27 September 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 69, 87, 99–101, 103
Prosecutor v Mrkšić, Šljivančanin (Appeals Chamber Judgment) IT-95-13/1A
(5 May 2009). . . . . . . . . . . . . . . . . . . . . . . . . 35, 52, 72–3, 76–8, 81, 83, 101–5, 108–9, 212
Prosecutor v Mucić et al (Čelebići) (Trial Chamber Judgment) IT-96-21-T
(16 November 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111–2, 116
Prosecutor v Mucić et al (Čelebići) (Appeals Chamber Judgment) IT-96-21-A
(20 February 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 89, 91, 113
Prosecutor v Orić (Trial Chamber Judgment) IT-03-68-T (30 June 2006). . . . . . . . . . . . . 69, 103,
112–3, 115, 119
Prosecutor v Orić (Appeals Chamber Judgment) IT-03-68-A (3 July 2008). . . . . 50, 52, 75–6, 113
Prosecutor v Perišić (Trial Chamber Judgment) IT-04-81-T (6 September 2011). . . . . . 80, 84, 108
Prosecutor v Perišić (Appeals Chamber Judgment) IT-04-81-A (28 February 2013). . . . . . 70, 80–3
Prosecutor v Šainović et al (Appeals Chamber Judgment) IT-05-87-A
(23 January 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83–4
Prosecutor v Simić (Appeals Chamber Judgment) IT-95-9-A
(28 November 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 72–3, 76–8, 212
Prosecutor v Šljivančanin (Appeals Chamber Review Judgment) IT-95-13/1-R.1
(8 December 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Prosecutor v Stakić (Trial Chamber Judgment) IT-97-24-T (31 July 2003). . . . . . . . . . . . . . . . . . 93
Prosecutor v Stanišić and Simatović (Trial Chamber Judgment) IT-03-69-T
(30 May 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83–4
Prosecutor v Strugar (Trial Chamber Judgment) IT-01-42-T (31 January 2005) . . . . . . . . . . 11, 74
Prosecutor v Tadić (Trial Chamber Judgment) IT-94-1-T (7 May 1997). . . . . . . . . . . . . . . . . . . . 73
Prosecutor v Tadić (Appeals Chamber Judgment) IT-94-1A (15 July 1999) . . . . . . . . . . . . . . 17, 70,
72, 79, 81, 87, 206, 212
Prosecutor v Vasiljević (Trial Chamber Judgment) IT-98-32-T (29 November 2002). . . . . . . . . 103
Prosecutor v Vasiljević (Appeals Chamber Judgment) IT-98-32-A (25 February 2004) . . . . . 89, 99
Special Court for Sierra Leone

Prosecutor v Taylor (Trial Chamber Judgement) SCSL-03-01-T (30 May 2012) . . . . . . . 76, 78, 87
Prosecutor v Taylor (Appeals Chamber Judgment) SCSL-03-01-A (26 September 2013). . . 50, 70,
72, 75–6, 78, 82–3, 87, 89–90, 171
Post-Second World War Trials

Judgment of the Nuremberg International Military Tribunal (1 October 1946) (1947)
41 Am J Intl L 172 (Nuremberg International Military Tribunal). . . . . . . . . . . . . . . . . . 62–3
Robert Wagner & Six Others (24 July 1946) (1948) III LRTWC 23
(Permanent Military Tribunal, Strasbourg). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
The Jaluit Atoll Case (13 December 1945) (1947) 1 LRTWC 71
(United States Military Commission, Marshall Islands). . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Trial of General Tomoyuki Yamashita (4 February 1946) (1948) IV LRTWC 1
(United States Military Commission, Manila) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110–1
xiv Table of Cases
Zyklon B—Trial of Bruno Tesch and Two Others (8 March 1946) (1947) I LRTWC 93
(British Military Tribunal, Hamburg). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 75
European Court of Human Rights

Al Nashiri v Poland (App 28761/11) (Judgment of 24 July 2014). . . . . . . . . . . . . . . . . . . . . . . . 194
Chahal v United Kingdom (App 22414/93) (1996) 23 EHRR 413. . . . . . . . . . . . . . . . . . . . . . . 199
El-Masri v The Former Yugoslav Republic of Macedonia (App 39630/09)
(13 December 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193–4
Husayn (Abu Zubaydah) v Poland (App 7511/13) (Judgment of 24 July 2014). . . . . . . . . . . . . . 194
Ilașcu and Others v Moldova and Russia (App 48787/99) (2005) 40 EHRR 1030.. . . . . . . . . . . 194
Ireland v United Kingdom (App 5310/71) (1978) 2 EHRR 25 . . . . . . . . . . . . . . . . . . . . . . 130, 190
Kiliç v Turkey (App 22492/93) (2000) 33 EHRR 1357. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Soering v United Kingdom (App 14038/88) (1989) 11 EHRR 439. . . . . . . . . . . . . . . 7, 194, 198–9
Inter-American Commission on Human Rights

Riofrío Massacre (Colombia) (6 April 2001) Inter-Am CHR, Report No 62/01 . . . . . . . 192, 194–5
Inter-American Court of Human Rights

Mapiripán Massacre (Colombia) (15 September 2005) Inter-Am Ct HR, Series C
No 134 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192, 194, 196–7
Paniagua Morales et al (Guatemala) (8 March 1998) Inter-Am Ct HR, Series C
No. 37 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191–2, 195
Velasquez Rodriguez (Honduras) (29 July 1988) Inter-Am Ct HR, Series C
No 4 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130, 190–1
Arbitral Tribunals
Island of Palmas (Netherlands/USA) (1928) 2 RIAA 829 . . . . . . . . . . . . . . . . . . . . 130–1, 142, 189
Spanish Zone of Morocco Case (United Kingdom/Spain) (1923) 2 RIAA 615. . . . . . . . . . . . . . . . 129
United Nations Human Rights Committee

Mohammed Alzery v Sweden (10 November 2006) UNHRC, CCPR/C/88/D/1416/2005 . . . . 194
DOMESTIC COURTS
England and Wales
Cassady v Reg Morris (Transport) Ltd [1975] RTR 470 (DC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Crampton v Fish [1969] 113 SJ 1003 (DC). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
DPP for Northern Ireland v Lynch [1975] AC 653 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Du Cros v Lambourne [1907] 1 KB 40 (KB). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Gillick v West Norfolk and Wisbech Area Health Authority and the Department of
Health and Social Security [1986] AC 112 (HL). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 85
Hyam v DPP [1975] AC 55 (HL). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Johnson v Youden [1950] 1 KB 544 (DC). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 52, 76
Lumley v Gye [1853] 118 ER 749 (QB). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15–7
Maxwell v DPP for Northern Ireland [1979] 68 Cr App R 128 (HL). . . . . . . . . . . . . . . . . . . . . . . 51
Morby (1882) 8 QBD 571 (QB). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
OBG Limited and Others v Allan and Others [2008] 1 AC 1 (HL) . . . . . . . . . . . . . . . . . . . . . . . . 16
R v Bainbridge [1960] 1 QB 129 (CCA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
R v Clarkson (1971) 55 Cr App R 445 (CMAC). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
R v Coney (1882) 8 QBD 534 (DC). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Table of Cases xv
R v Giannetto [1997] 1 Cr App R 1 (CA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
R v Harris [1964] Crim LR 54 (CA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
R v Instan [1893] 1 QB 450 (QB). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
R v Marlow [1998] 1 Cr App R (S) 273 (CA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
R v Miller [1983] 2 AC 161 (HL). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 104, 107
R v Pittwood [1902] 19 TLR 37 (A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38–40, 104
R v Russell (1933) VLR 59 (Vt). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
R v Webster [2006] EWCA Crim 415 (CA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Rubie v Faulkner [1940] 1 KB 571 (KB). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Tuck v Robson [1970] 1 All ER 1171 (QB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Wilcox v Jeffery [1951] 1 All ER 464 (DC). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Germany
Al-M 2 BVerfG 1506/03 (FCC). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
United States of America

Backun v United States (1940) 112 F 2d 635 (4th Cir) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47–8
In re Yamashita 327 US 1 (1946) (USSC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Pinkerton v United States 328 US 640 (1946) (USCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
State v Fortner, 182 W Va 345, 387 SE 2d 812 (1989) (West Virginia). . . . . . . . . . . . . . . . . . . . . 24
State v Tally (1894) 15 So 722 (Alabama). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
United States v Peoni (1938) 100 F 2d 401 (2nd Cir) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47–8
The Netherlands
Prosecutor v Frans van Anraat LJN: BG4822, 07/10742 (Dutch Supreme Court) . . . . . . . . . . . . 47
Table of Treaties
Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis (signed in London, 8 August 1945) 82 UNTS 279 . . . . . . . . . . . . . . . . . . . 62
American Convention on Human Rights (adopted 22 November 1969, entered into
force 18 July 1978) 1144 UNTS 123. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 192–3, 196
Charter of the United Nations (adopted 26 June 1945, entered into force
25 October 1945) 1 UNTS XVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135–6, 180, 182
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (adopted 10 December 1984, entered into force 26 June 1987)
1465 UNTS 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 35, 152
Convention concerning the Rights and Duties of Neutral Powers in Naval War
(adopted 18 October 1907, entered into force 26 January 1910) 36 Stat 2415 . . . . . . . . . . 126
Convention of 4 July 1831 between France and the United States of America
(ratified on 2 February 1832). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 209
Convention on the Prevention and Punishment of the Crime of Genocide (adopted
9 December 1948, entered into force 12 January 1951) 78 UNTS 277. . . . . . . . . 35, 93, 96,
151, 154, 202–6, 208–10
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (adopted 12 August 1949, entered into force
21 October 1950) 75 UNTS 31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 215
Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949,
entered into force 21 October 1950) 75 UNTS 85. . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 215
Convention (III) Relative to the Treatment of Prisoners of War (adopted
12 August 1949, entered into force 21 October 1950) 75 UNTS 135 . . . . . . . . . . . 100, 102,
104, 210, 215
Convention (IV) Relative to the Protection of Civilian Persons in Time of War
(adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287. . . . . 210, 215
(European) Convention for the Protection of Human Rights and Fundamental
Freedoms (adopted 4 November 1950, entered into force 3 September 1953;
as amended) 213 UNTS 222. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 131, 162, 194, 198
International Convention for the Suppression of Terrorist Bombings
(adopted 15 December 1997, entered into force 23 May 2001) 2149 UNTS 284. . . . . . . . . 61
International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171. . . . . . . . . . . . . . . . . . . . . . . . . . . . 198–9
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (adopted 8 June 1977,
entered into force 7 December 1978) 1125 UNTS 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into
force 1 July 2002) 2187 UNTS 90. . . . . . . . . . . . . 33–4, 50, 61, 63–4, 67–70, 72, 76, 87–8,
90, 92–3, 97, 106–7, 111, 114–6, 118–20, 204, 212
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into
force 27 January 1980) 1155 UNTS 331. . . . . . . . . . . . . . . . . . . . . . . . . 13, 163–4, 166, 173
xviii Table of Treaties
OTHER PRIMARY AUTHORITIES

RESOLUTIONS OF THE UNITED NATIONS SECURITY COUNCIL
Resolution 418 (1977) of 4 November 1977
Resolution 822 (1993) of 30 April 1993
Resolution 827 (1993) of 25 May 1993
Resolution 853 (1993) of 29 July 1993
Resolution 874 (1993) of 14 October 1993
Resolution 1368 (2001) of 12 September 2001
Resolution 1373 (2001) of 28 September 2001
RESOLUTIONS OF THE UNITED NATIONS GENER AL ASSEMBLY

Resolution 174 (II) (21 November 1947)
Resolution 498 (V) (1 February 1951)
Resolution 2625 (XXV) (24 October 1970)
Resolution 3314 (XXIX) (14 December 1974)
Resolution 36/27 (13 November 1981)
Resolution 37/123 (16 December 1982)
Resolution 41/38 (20 November 1986)
Resolution 53/108 (26 January 1999)
Resolution 56/1 (18 September 2001)
UNITED NATIONS INTERNATIONAL LAW COMMISSION

Special Rapporteurs
Ago R, ‘Second Report on State Responsibility—the Origin of International
Responsibility’ (1970) UN Doc A/CN.4/233 (1970) II YILC 177
Ago R, ‘Fourth Report on State Responsibility—The Internationally Wrongful Act of
the State, Source of International Responsibility’ (1978) UN Doc A/CN.4/264
(1978) II YILC 72
Ago R, ‘Seventh Report on State Responsibility—the Internationally Wrongful Act of
the State, Source of International Responsibility’ (1978) UN Doc A/CN.4/307
(1978) I(1) YILC 31
Crawford J, ‘Second Report on State Responsibility’ (1999) UN Doc A/CN.4/498/Add.1
(1999) II(1) YILC 3
Documents
‘Observations and Comments from Governments on Chapters I, II, and III of Part I of the
Draft Articles on State Responsibility for Internationally Wrongful Acts’ (1980)
UN Doc A/CN.4/328
Table of Treaties xix
‘State Responsibility—Comments and Observations Received from Governments’
(1998) UN Doc A/CN.4/488
‘State Responsibility—Comments and Observations Received from Governments’
(1999) UN Doc A/CN.4/492
‘State Responsibility—Comments and Observations Received From Governments’
(2001) UN Doc A/CN.4/515
‘Responsibility of International Organizations—Texts and Titles of Draft Articles 1
to 67 adopted by the Drafting Committee on Second Reading in 2011’ (2011)
UN Doc A/CN.4/L.778
UNITED NATIONS TREATY BODIES

UNHRC, ‘General Comment 20’ (10 March 1992)
UN Doc HRI/GEN/1/Rev.1 30 (1994)
UNHRC, ‘General Comment 31’ (29 March 2004)
UN Doc CCPR/C/21/Rev.1/Add.13 (2004)
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of
Human Rights and Fundamental Freedoms while Countering Terrorism’
(4 February 2009) UN Doc A/HRC10/3
UNHRC, ‘Joint Study on Global Practices in relation to Secret Detention in the Context
of Countering Terrorism’ (19 February 2010) UN Doc A/HRC/13/42
UNHRC, ‘Report of the Independent International Commission of Inquiry on the
Syrian Arab Republic’ (4 June 2013) UN Doc A/HRC/23/58
OTHER
Allied Control Council Law No 10, Punishment of Persons Guilty of War Crimes,
Crimes against Peace and Humanity (20 December 1945) 3 Official Gazette
Control Council for Germany 50–55 (1946)
Charter of the International Military Tribunal (Nuremberg) annexed to Agreement
for the Prosecution and Punishment of the Major War Criminals of the
European Axis (signed in London, 8 August 1945) 82 UNTS 279
Charter of the International Military Tribunal for the Far East (19 January 1946,
amended 25 April 1946) TIAS No 1589
Report of the Preparatory Committee for the Establishment of an International
Criminal Court—Draft Statute for the International Criminal Court (14 April 1998)
UN Doc A/Conf.183/2/Add.1
Resolution RC.Res.6 adopted at the 13th Plenary Meeting, Review Conference of
the Rome Statute, Kampala, Uganda (11 June 2010)
International Commission of Jurists, ‘Report of the Expert Panel on Corporate
Complicity in International Crimes’ (Geneva 2008)
United Kingdom Parliament Joint Committee on Human Rights, Allegations of UK
Complicity in Torture (2008-09 HL Paper 152 HC 230)
European Commission for Democracy through Law, ‘Opinion on the International
Legal Obligations of Council of Europe Member States in Respect of Secret Detention
Facilities and Inter-State Transport of Prisoners’ adopted by the Venice Commission
at its 66th Plenary Session (17 March 2005), Op No 363/2005
xx Table of Treaties
DOMESTIC LEGISLATION
Austria
StGB § 12
United States of America

18 USC § 2 (1994)
Mo Rev Stat § 575.230 (Mo)
Mo Rev Stat § 575.210 (Mo)
Model Penal Code § 2.06 (Proposed Official Draft 1962)
New York Penal Law § 115 (NY)
W Va Code § 61–3-1 (1977) (W Va)
Canada
Crimes against Humanity and War Crimes Act 2000, s 5
England
Statute of Labourers (1349) 23 Edw III
England and Wales

Accessories and Abettors Act 1861, as amended by Sch 12 to the Criminal Law Act 1977, s 8
International Criminal Court Act 2001, s 65
Merchant Shipping Act 1995, s 93
Serious Crime Act 2007, s 44
Germany
StGB § 25
StGB § 26
StGB § 27
StGB § 49
Scotland
International Criminal Court (Scotland) Act 2001, s 5
List of Abbreviations
ARSIWA Articles on Responsibility of States for Internationally

Wrongful Acts
CIA Central Intelligence Agency
DRC Democratic Republic of the Congo
ECHR European Convention on Human Rights
EHRR European Human Rights Reports
FARC Revolutionary Armed Forces of Colombia
FRG Federal Republic of Germany
FRY Federal Republic of Yugoslavia
GCIII Convention (III) Relative to the Treatment of Prisoners of War
(adopted 12 August 1949, entered into force 21 October 1950)
75 UNTS 135
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
ILC International Law Commission
IMT International Military Tribunal
JCE Joint Criminal Enterprise
JNA Yugoslav People’s Army
LQR Law Quarterly Review
LRTWC Law Reports of Trials of War Criminals
NATO North Atlantic Treaty Organization
OAS Organization of American States
PCIJ Permanent Court of International Justice
PKK Kurdistan Workers’ Party
RIAA Reports of International Arbitral Awards
SCSL Special Court for Sierra Leone
StGB Strafgesetzbuch
TO Territorial Defense Forces, Yugoslavia
UAE United Arab Emirates
UK United Kingdom
UN United Nations
UNGA United Nations General Assembly
UNHRC United Nations Human Rights Committee
UNSC United Nations Security Council
UNTS United Nations Treaty Series
xxii List of Abbreviations
US United States of America
USC United States Code
USSR Union of Soviet Socialist Republics
VCLT Vienna Convention on the Law of Treaties
VRS Army of the Republika Srpska
YILC Yearbook of the International Law Commission
PART A
A THEORY OF COMPLICITY
1
Introduction
1.1. Introduction
Allegations of complicity are pervasive: France has been accused of complic-
ity in the Rwandan genocide,1 China of complicity in atrocities in Darfur,2
Pakistan of complicity in the sheltering of Osama Bin Laden,3 and the United
Kingdom of complicity in torture during the war on terror.4 If these allega-
tions tell us anything about the nature of complicity, it is that to be complicit
one must be complicit in something. That something is the commission of
wrongdoing by another actor.
This work is concerned with the ways in which international law responds
to individual and state complicity in wrongdoing committed by another
actor. Complicity rules take a variety of forms, ranging in source, content,
and structure. This work provides an analytical account of these rules, locat-
ing them within a single framework. The framework assumes that no matter
the legal subject of the complicity rule, certain issues of scope and form must
be confronted.
Beyond this analytical account is a normative claim about the struc-
ture of complicity rules. Complicity is a particular way of contributing to
wrongdoing. This requires that responsibility be attributed to accomplices
for their acts of complicity. Rules of complicity structured in this way may be
termed ‘non-imputational’ complicity rules. A state that assists another state’s
1
Mike Pflanz, ‘French Leaders Accused of Complicity in Rwanda Genocide’ The Telegraph
(London, 5 August 2008) <http://www.telegraph.co.uk/news/worldnews/2506150/France-
accused-of-complicity-in-Rwanda-genocide.html> accessed 18 December 2014.
2
Eric Reeves, ‘Arming Khartoum: China’s Complicity in the Darfur Genocide’ Sudan Tribune
(Paris, 19 October 2010) <http://www.sudantribune.com/spip.php?article36644> accessed 18
December 2014.
3
Robert Baer, ‘Finding Bin Laden Raises Questions About Pakistan’s Complicity’ Time (New
York, 2 May 2011) <http://www.time.com/time/world/article/0,8599,2069012,00.html> accessed
18 December 2014.
4
United Kingdom Parliament Joint Committee on Human Rights, Allegations of UK Complicity
in Torture (2008–09) HL Paper 152 HC 230.
4 A Theory of Complicity
commission of genocide should be held responsible for assisting genocide. It
should not be held responsible for genocide. An individual who instigates
another individual to commit war crimes should be held responsible for insti-
gating war crimes and not be held responsible for war crimes themselves. This
is the normative claim of the work.
1.2. The Structure of the Work

The work is divided into four parts, which together comprise ten chapters.
Part A contains Chapters 1 and 2. Chapter 1, the present chapter, is a gen-
eral introduction. Chapter 2 addresses some matters of foundational concern
for a study of complicity. It provides a definition of complicity, considers
why complicity rules exist, defends the work’s normative claim concerning
the structure of complicity, and builds an analytical framework in which
complicity rules may be understood. That framework structures the analy-
sis along three axes: the forms of complicity prohibited, the nexus between
the accomplice’s act and the principal’s wrong, and the fault required of the
accomplice.
Thereafter, the work is organized around the status of the complicit actor.
Part B (Chapters 3–5) addresses individual complicity in international crimi-
nal law. After a brief assessment in Chapter 3 of the principle of individual
criminal responsibility in international law, Chapter 4 analyses the two
central complicity doctrines of instigation and aiding and abetting, plac-
ing them within the analytical framework of the work and evaluating their
structure against the normative claim noted above. Chapter 5 assesses two
ways that international criminal law deals with complicit omissions. First, it
is now established that in a limited set of circumstances, an omission may
fulfil the conduct element of aiding and abetting as a mode of responsibility.
Second, some complicit omissions give rise to liability under the doctrine of
command responsibility.
Part C (Chapters 6–9) addresses state complicity. As will become clear,
the idea of state complicity historically had an uneasy relationship with the
basic structures and assumptions of international law and state responsibility.
These difficulties are noted in Chapter 6. To explain this uneasy relationship
and understand how international law has developed, it is helpful to dis-
tinguish (a) state participation in the conduct of another state and (b) state
participation in the conduct of a non-state actor.
In respect of the former, moving away from a historical absence of
complicity rules, international law now prohibits various forms of state
complicity in the wrongful conduct of another state. These are addressed
Introduction 5
in Chapter 7. Initially, specific complicity rules arose concerning state
participation in a particular international wrong. This work analyses the
specific complicity rule prohibiting state participation in the wrong of
aggression. Subsequently, a general complicity rule arose prohibiting states
from aiding or assisting another state in the commission of any interna-
tional wrong. This is the rule reflected in Article 16 of the International
Law Commission’s Articles on Responsibility of States for Internationally
Wrongful Acts (ARSIWA).5 Although one element of the general rule
unduly limits its scope, it represents a leap in the ‘moral sophistication of
international law’.6
In respect of the latter—state participation in the conduct of non-state
actors—there has historically been a conceptual difficulty in assessing the
state’s participation as a form of complicity. Complicity is essentially deriva-
tive: it requires wrongdoing by the principal actor.7 Without any such wrong-
doing, there is nothing for the complicit state to be complicit in.8 Even if the
state is no longer the exclusive subject of international law, it has long been
its primary subject.9 That is to say, the predominant bearer of rights and
duties within the international legal system has traditionally been the state.10
The absence of direct regulation of the conduct of non-state actors robbed
international law of the possibility of state responsibility for complicity in
that conduct. De Frouville takes up this point in explaining that the rejec-
tion of complicity ‘simply follows from the classical structure of normativity
in international law which is articulated around the obligations, the only
subjects of which are States’.11
It will be seen that some instances of state participation in the con-
duct of non-state actors will give rise to state responsibility under various
broader due diligence obligations that require states to protect against cer-
tain harms. These are not complicity rules, for there is no principal wrong
5
International Law Commission, ‘Responsibility of States for Internationally Wrongful Acts’
annexed to UNGA Res 56/83 (12 December 2001) UN Doc A/Res/56/83.
6
Vaughan Lowe, ‘Responsibility for the Conduct of Other States’ (2002) 101 Japanese J Intl
L 1, 12.
7
Sanford Kadish, ‘Complicity, Cause and Blame’ (1985) 73 Calif L Rev 323, 337.
8
Robert Weisberg, ‘Reappraising Complicity’ (2000–2001) 4 Buff Crim L Rev 217, 224; John
Quigley, ‘Complicity in International Law: A New Direction in the Law of State Responsibility’
(1986) 57 British YB Intl L 77, 86.
9
Robert Jennings and Arthur Watts, Oppenheim’s International Law—Volume 1: Peace—
Introduction and Part 1 (9th edn. Longman 1996) 16.
10
James Crawford, Brownlie’s Principles of Public International Law (OUP 2012) 115.
11
Olivier de Frouville, ‘Attribution of Conduct to the State: Private Individuals’ in James
Crawford, Alain Pellet, and Simon Olleson (eds.) The Law of International Responsibility (OUP
2010) 257, 276.
on the international plane from which the state’s responsibility is derived.12
Obligations of this kind are not of primary concern; there is an extensive
literature assessing their content and source.13 Instead, this work assesses two
developments that affect the ways in which international law regulates the
participation of states in the harms caused by non-state actors.
First, Chapter 8 addresses the claim that the idea of complicity has pene-
trated the rules of attribution in international law. In customary international
law, the attribution of conduct of a non-state actor to the state is marked by
the search for an agency relationship. A complicit relationship—one fall-
ing short of the direction and/or control required for agency—is ordinarily
insufficient to attribute the conduct of a non-state actor to the state.14 In two
contexts—terrorist attacks and human rights violations in the Inter-American
system—there is a claim that a complicit relationship is sufficient for attribu-
tion. The work argues that this claim should be rejected.
Second, Chapter 9 explains that as international law has come to recognize
conduct other than state conduct as internationally wrongful, so the concep-
tual possibilities for complicity have expanded. To put it bluntly, now that
non-state actors can commit principal wrongs on the international plane,
there is principal wrongdoing by non-state actors for states to be complicit
in.15 On this basis, international law is able to articulate and condemn state
complicity qua complicity. The best example of this development is the pro-
hibition on state complicity in genocide. Chapter 9 also raises the possibility
that a non-state analogue to Article 16 ARSIWA will develop.
Together, Parts B and C (Chapters 3–9) provide an analytical account of
complicity in international law and a critique of the structure of the rules
in accordance with the normative claim of the work. As a broad narrative,
the ease with which international criminal law has sanctioned individual
complicity may be contrasted with the historical inadequacy of international
law’s regulation of state complicity. That inadequacy is (almost) a thing of
12
De Frouville, ‘Attribution of Conduct’ 276–7.
13
See Riccardo Pisillo-Mazzeschi, ‘Due Diligence and the International Responsibility of
States’ (1992) 35 German YB Intl L 9; Robert Barnidge, Non-State Actors and Terrorism: Applying
the Law of State Responsibility and the Due Diligence Principle (TMC Asser 2008); Sarah Heathcote,
‘State Omissions and Due Diligence: Aspects of Fault, Damage and Contribution to Injury in the
Law of State Responsibility’ in Karine Bannelier, Theodore Christakis, and Sarah Heathcote (eds.)
The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case
(Routledge 2012) 295.
14
Art 8 ARSIWA; Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Merits) [2007] ICJ Rep 43
[398]–[407]; Tal Becker, Terrorism and the State (Hart 2006) 43–79; Christine Chinkin, Third
Parties in International Law (OUP 1993) 142.
15
De Frouville, ‘Attribution of Conduct’ 277.
Introduction 7
the past, at least with respect to state complicity in the wrongdoing of other
states. Part D (Chapter 10) draws these threads together.
1.3. The Scope of the Work

As noted above, complicity is essentially derivative; its logic is to tie the
participatory conduct of the accomplice to the wrongdoing of the princi-
pal actor.16 There is some terminological confusion in the literature on this
point. Scholars sometimes use the term derivative to mean that the acts of
the principal are imputed to the accomplice.17 Complicity rules structured in
this way are better described as imputational complicity. Although complic-
ity rules are always derivative in that for every act of complicity there must be
an act of principalship, they are not necessarily imputational.18 Accomplices
may (and, in terms of the normative claim of the work, should) be held
responsible for their own contribution to the principal wrong.
The essential derivative character of complicity explains the exclusion of
certain related forms of responsibility from this work. Consider the obli-
gation of non-refoulement in international law. The obligation commonly
arises in respect of the prohibition of torture in international human rights
law.19 Article 3 of the European Convention on Human Rights, for instance,
prohibits deportation or extradition where there are substantial grounds for
believing that the individual faces a real risk of torture or inhuman and
degrading treatment in the receiving state.20 The breach of Article 3 arises at
the moment of the deportation or extradition. Whether the wrongful treat-
ment later occurs is immaterial to the Article 3 violation. For this reason,
non-refoulement is not a derivative form of responsibility and, consequently,
is not a form of complicity per se. Instead, it may be thought of as a kindred
16
Kadish, ‘Complicity, Cause and Blame’ 337.
17
See George Fletcher, ‘Complicity’ (1996) 30 Isr L Rev 140.
18
Cf Markus Dubber, ‘Criminalizing Complicity: A Comparative Analysis’ (2007) 5 J Intl
Crim Justice 977, 993.
19
Art 3(1) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85;
UNHRC, ‘General Comment 20’ (10 March 1992) UN Doc HRI/GEN/1/Rev.1 30 (1994) [9]‌.
See generally Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle
of Non-Refoulement’ in Erika Feller, Volker Türk, and Frances Nicholson (eds.), Refugee Protection
in International Law – UNHCR’s Global Consultations on International Protection (CUP 2003) 87.
20
See (European) Convention for the Protection of Human Rights and Fundamental Freedoms
(adopted 4 November 1950, entered into force 3 September 1953; as amended) 213 UNTS 222;
Soering v. United Kingdom (App 14038/88) (1989) 11 EHRR 439.
form of responsibility21 that seeks to prevent contributions to wrongful con-
duct by introducing a general rule that responds to a risk of harm.22
Likewise, what might otherwise fulfil an ordinary mode or form of com-
plicity may itself be prohibited directly. UN Security Council Resolution
418 of 1977 imposed an arms embargo on South Africa: ‘all States shall
cease forthwith any provision to South Africa of arms and related matérial of
all types’.23 Any such provision, which may also constitute aid or assistance
under conventional doctrines of complicity where it is linked to a subsequent
wrongful act, would give rise to direct state responsibility for breach of that
obligation.24 This is not a form of derivative liability. Obligations of this kind
are not the focus of this work.
In addition, for reasons of scope, this work does not address a number
of emerging topics and areas in international law related to, or even fall-
ing within, the idea of complicity. It does not address corporate complic-
ity.25 It does not deal with the responsibility of international organizations.26
Although, of course, heightened forms of complicity at some point cross over
into joint perpetration or commission, this work does not address the ways
in which international law holds states or individuals jointly responsible.27
21
KJM Smith, A Modern Treatise on the Law of Complicity (Clarendon 1991) 7.
22
This is not to say that a state that deports or extradites an individual knowing that he or she
will be tortured would not be complicit in torture by the recipient state should the torture occur. In
all likelihood, the state would be responsible for complicity, in addition to its responsibility under
the principle of non-refoulement. The point is that a breach of the non-refoulement obligation does
not require the commission of wrongdoing by another actor.
23
UNSC Res 418 (4 November 1977) UN Doc S/Res/418.
24
See Roberto Ago, ‘Seventh Report on State Responsibility—the Internationally Wrongful
Act of the State, Source of International Responsibility’ (1978) UN Doc A/CN.4/307 (1978) I(1)
YILC 31 [72].
25
See generally International Commission of Jurists, ‘Report of the Expert Panel on Corporate
Complicity in International Crimes’ (Geneva 2008); Andrew Clapham, ‘Extending International
Criminal Law beyond the Individual to Corporations and Armed Opposition Groups’ (2008) 6 J
Intl Crim Justice 899.
26
See generally International Law Commission, ‘Responsibility of International
Organizations—Texts and Titles of Draft Articles 1 to 67 adopted by the Drafting Committee
on Second Reading in 2011’ (2011) UN Doc A/CN.4/L.778; August Reinisch, ‘Aid or Assistance
and Direction and Control between States and International Organizations in the Commission
of Internationally Wrongful Acts’ (2010) 7 Intl Org L Rev 63; Pierre Klein, ‘Attribution of Acts to
International Organizations’ in Crawford et al. The Law of International Responsibility 297; Nataša
Nedeski and André Nollkaemper, ‘Responsibility of International Organizations “in Connection
with Acts of States”’ (2012) 9 Intl Org L Rev 33.
27
See generally Smith, A Treatise on Complicity 209–34; Jens Ohlin, ‘Joint Intentions to Commit
International Crimes’ (2010–2011) 11 Chicago J Intl L 693; Jens Ohlin, Elies van Sliedregt, and
Thomas Weigend, ‘Assessing the Control Theory’ (2013) 26 Leiden J Intl L 725; John Noyes and
Brian Smith, ‘State Responsibility and the Principle of Joint and Several Liability’ (1998) 13 Yale
J Intl L 225; Stefan Talmon, ‘A Plurality of Responsible Actors—International Responsibility for
Acts of the Coalition Provision Authority in Iraq’ in Phil Shiner and Andrew Williams (eds.) The
Introduction 9
This work does not deal with situations where a state directs and controls the
commission of an internationally wrongful act by another state,28 or indeed
coerces such an act.29 Moreover, it does not provide a comprehensive over-
view of state practice relating to state complicity30 or of the modes of respon-
sibility in international criminal law.31
Instead, this work seeks to understand how international law prohibits
core instances of state and individual complicity. It places the rules into a sin-
gle analytical framework based on the kinds of complicit conduct prohibited,
the nexus between the accomplice’s acts and the principal’s wrong, and the
fault required of the accomplice; and evaluates the structure of the accom-
plice’s responsibility against the work’s normative claim. In doing so, it also
provides a narrative account of how international law increasingly regulates
different forms of individual and state complicity.
Iraq War and International Law (Hart 2008) 185; Francesco Messineo, ‘Multiple Attribution of
Conduct’ SHARES Research Paper No 2012–11; André Nollkaemper and Dov Jacobs, ‘Shared
Responsibility in International Law: A Conceptual Framework’ (2012/2013) 34 Mich J Intl L 359.
28
See Art 17 ARSIWA. 29
See Art 18 ARSIWA.
30
See Quigley, ‘Complicity in International Law’ 81–107; Helmut Aust, Complicity and the
Law of State Responsibility (CUP 2011) 97–191.
31
See Gideon Boas, James Bischoff, and Natalie Reid, Forms of Responsibility in International
Criminal Law—International Criminal Law Practitioner Library Series: Volume I (CUP 2007);
Elies van Sliedregt, Individual Criminal Responsibility in International Law (OUP 2012).
2
The Structure of Complicity
2.1. Introduction
This chapter addresses four matters of foundational concern for a study of
complicity. First, it provides a definition of complicity. Second, it explores
the wrongness of complicity. Third, it considers the different ways that legal
systems prohibit complicit conduct; that is to say, it assesses how complic-
ity rules may be structured. That assessment gives rise to a preference for
non-imputational complicity rules, which is the normative claim of the work.
Fourth, it builds an analytical framework in which the rules arising in inter-
national law will be discussed. The framework consists of three issues that
must be resolved whenever complicity is prohibited: the forms of complicity
proscribed, the nexus between the accomplice’s conduct and the principal’s
wrong, and the fault required of the accomplice.
2.2. A Definition of Complicity

In conventional usage, the idea of complicity is widely understood. At root,
it concerns an actor’s participation in wrongdoing committed by another
actor.1 In building a definition of complicity, it is helpful to look to criminal
law, for it is here that complicity receives most attention.2
In criminal law, a common approach to complicity is to proscribe certain
kinds of behaviour that constitute participation in another person’s crimi-
nal acts. A range of terms is used to sanction participation in this way. The
federal complicity rule in the United States refers to those who aid, abet,
1
Smith, A Treatise on Complicity 1–2.
2
See Smith, A Treatise on Complicity; Kadish, ‘Complicity, Cause and Blame’; Joshua Dressler,
‘Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old
Problem (1985–1986) 37 Hastings LJ 91; Weisberg, ‘Reappraising Complicity’; Andrew Simester,
‘The Mental Element in Complicity’ (2006) 122 LQR 578; Robert Sullivan, ‘Conduct and
Complicity: Liability based on Omission and Risk’ (2008) 39 Cambrian L Rev 60.
The Structure of Complicity 11
counsel, command, induce, or procure the commission of an offence.3 In
England and Wales, the Accessories and Abettors Act of 1861 refers to aid-
ers, abettors, counsellors, and procurers.4 Older sources reveal prohibitions
on helping, giving comfort, and assisting.5 There is also reference to advising,
persuading, inducing, and soliciting.6 These may be termed modes or forms
of complicity.7 There is a risk of spending too much time on a literal con-
struction of these terms.8 Rather, it should be recognized that together these
terms attempt to prohibit complicity as a particular way of contributing to
wrongdoing.
That contribution is best thought of as comprising two kinds of
action: intentionally helping the principal to commit wrongdoing and inten-
tionally influencing the decision of the principal to commit the wrong.9
There is a temporal issue here. Despite linguistic similarities, the doctrine
of accessory after the fact should not be regarded as a form of complicity.10
This form of liability is a remnant of an ancient concern with receiving a
felon or shielding him from justice.11 Even in Blackstone’s time, the crime
of being an accessory after the fact was ‘always an offence of a different spe-
cies of guilt, principally tending to evade the public justice . . . ’.12 Accessories
after the fact do not help or influence the principal in his commission of
wrongdoing—they make no contribution to the wrong itself.13
That criminal law is the context in which ideas of complicity usually arise
should not be seen to exclude their application to other areas of law. At root,
complicity is simply a derivative form of responsibility for participation in
wrongdoing committed by another actor. Wrongdoing, in this sense, may
refer to the commission of any legal wrong, whether equitable, criminal,
civil, or international. This definition frames the work’s account of complic-
ity in international law.
3
18 USC § 2 (1994) (USA).
4
Accessories and Abettors Act 1861, as amended by Sch 12 to the Criminal Law Act 1977, s 8.
5
Smith, A Treatise on Complicity 31.
6
Kadish, ‘Complicity, Cause and Blame’ 343.
7
Smith, A Treatise on Complicity 20. 8
Ibid 33.
9
Kadish, ‘Complicity, Cause and Blame’ 342. 10
Smith, A Treatise on Complicity 7.
11
Glanville Williams, Criminal Law—The General Part (2nd edn. Stevens & Sons 1961)
409–10.
12
4 Bl Comm 40. See also Smith, A Treatise on Complicity 7–8.
13
The boundary between accomplice liability and liability as an accessory after the fact in
international criminal law is explored in section 4.3.2. See Blagojević, Jokić (Trial Chamber
Judgment) IT-02-60-T (17 January 2005) and Strugar (Trial Chamber Judgment) IT-01-42-T
(31 January 2005).
2.3. The Wrongness of Complicity
2.3.1. Moral and Legal Wrongs

On one level, the case for complicity is a moral case. It rests on the claim that
if it is wrong to do something, it is wrong to help or encourage others to do
it. Gardner argues that:
I am responsible for what I do, and you are responsible for what you do. But on
any credible view I need to give attention, in what I do, to what you will do in
consequence. And you need to give attention, in what you do, to what I will do in
consequence. In that sense, there are two parts of morality. There is what I should
do simpliciter, and then there is what I should do by way of contribution to what you
do. If I fail in the ﬁrst I am a principal. If I fail in the second I am an accomplice.14
On this account, the wrongness of the principal’s act justifies a prohibition
of complicity. A justification of this kind is most easily understood in the
context of criminal law. Clearly, a number of criminal offences prohibit con-
duct that is morally wrong: murder, for instance, is malum in se.15 More than
simply justifying the existence of a complicity rule, the wrongness of the
principal act requires it. Here, a prohibition of complicity—concern not just
with what subjects do to each other but with what they help or encourage
others to do—is a sign of the moral sophistication of a legal system.16
The justification of, and demand for, complicity rules on a basis other
than the moral wrongness of the principal act requires further thought. In
these cases, we are confined to saying that the principal, helped or encour-
aged by the accomplice, committed a legal wrong against the victim. Here, it
is helpful to distinguish two different relationships among the three parties
(V being the victim, P the principal, and A the accomplice):
A. V has a right exigible against both P and A. P, helped or encouraged by
A, violates the correlative duty;
B. V has a right exigible against P only. P, helped or encouraged by A, vio-
lates the correlative duty.17
14
John Gardner, ‘Complicity and Causality’ (2007) 1 Crim L & Phil 127, 132.
15
See Bl Comm 54.
16
Lowe, ‘Responsibility for the Conduct of Other States’ 12. See also Gardner, ‘Complicity
and Causality’ 132.
17
This distinction borrows from, but does not match, Hohfeld’s distinction between paucital
and multital rights. See Wesley Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial
Reasoning’ (1916–1917) 26 Yale L J 710, 718–19.
In both cases P violates the duty, though only in the former was the correla-
tive right held by V also exigible against A. This distinction is important in
considering whether complicity rules are justified and/or required.
In the former case, the shared legal obligation owed by P and A to V
itself demands that A does not help or encourage P’s violation of that obli-
gation. There is an intuitive plausibility to this claim—as the International
Law Commission puts it, one ‘cannot do by another what [one] cannot do
by [oneself]’.18 As a general principle, this holds across the range of obliga-
tions arising in domestic and international law. It should be noted, however,
that the exact content of the complicity prohibition might vary according
to the nature of the principal obligation. A useful illustration in this regard
is the difference between complicity in municipal criminal law and the law
of torts.19 In England and Wales, for instance, accomplice liability in tort
law requires a higher form of participation in the wrong than criminal law;
knowing assistance is insufficient.20
The second situation—where only P is under a duty to V—is more com-
plicated. It is best illustrated through contractual duties in municipal law.
Imagine P and V contract. P is under a contractual duty to refrain from
building any structure within view of V’s property. A, who is aware of the
contract, then helps or encourages P to build such a prohibited structure. In a
general sense, we may say that A is complicit in P’s violation of his legal duty.
Whether this is the kind of complicity that the legal system ought to pro-
hibit is a difficult question. It is fundamental that a contract does not impose
obligations on third parties. P’s voluntary assumption of a duty towards V
does not give rise to a duty owed by A (or B, C, or D) to V.21 Correlatively, V
has no right arising under the contract exigible against A (or B, C, or D). This
rule of privity flows from the consensual nature of contractual obligations.22
In the context of treaties in international law, the same idea is captured by the
pacta tertiis rule—a treaty does not create obligations on a third state without
its consent.23 However, appeals to privity or the pacta tertiis rule should not
18
ARSIWA Commentary on Art 16 [6]‌.
19
See Hazel Carty, ‘Joint Tortfeasance and Assistance Liability’ (1999) 19 Legal Stud 489;
Paul Davies, ‘Accessory Liability for Assisting Torts’ (2011) 70 Camb L J 353; Joachim Dietrich,
‘Accessorial Liability in the Law of Torts’ (2011) 31 Legal Stud 231. See also Robert Stevens, Torts
and Rights (OUP 2007) 275–83.
20
Davies, ‘Accessory Liability for Assisting Torts’ 357–8; Dietrich, ‘Accessorial Liability in the
Law of Torts’ 239.
21
See Wesley Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning
(1913–1914) 23 Yale L J 16, 36–7.
22
See Edwin Peel, Treitel’s Law of Contract (13th edn. Sweet and Maxwell 2011) 621.
23
Art 34 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1155 UNTS 331 (VCLT). See Vaughan Lowe, International Law (OUP 2011) 81–6.
be the end of the matter. As Hohfeld puts it: ‘Whether there should be such
concomitant rights (or claims) is ultimately a question of justice and policy;
and it should be considered, as such, on its merits.’24
2.3.2. An Analogy to Inducing Breach of Contract in

England and Wales
Whether or not public international law should prohibit state complicity in
the breach by another state of an international obligation binding only it
(and not the potentially complicit state) is a central question in Chapter 7. It
will be seen that the rule reflected in Article 16 ARSIWA denies the existence
of any such prohibition. At this point, a tentative analogy might be drawn to
the tort of inducing breach of contract in England and Wales.25 It is tentative
because of differences between the legal subjects of the rules, the nature of
responsibility, and the underlying principles, structures, and purposes of the
legal systems. Nonetheless, the analogy is helpful in illustrating how ques-
tions of justice and policy that inform the desirability of a complicity rule
play out in a particular legal context.
Although the inducement tort’s antecedents may be traced to the Roman
actio indirecta,26 in England and Wales the Statute of Labourers of 1349 is
a more interesting starting point. Issued by Edward III in the midst of the
Black Death, the statute sought to compel labourers to work at fixed prices.27
In addition, it provided:
[i]‌f any reaper, mower, or other workman or servant, of what estate or condition
that he be, retained in any man’s service, do depart from the said service without
reasonable cause or license, before the term agreed, he shall have pain of imprison-
ment. And that none under the same pain presume to receive or to retain any such
in his service.28
As Sayre explains, one effect of this provision was to create a new statu-
tory remedy available against a third party for enticing another man’s serv-
ant away from his service, the prevailing concern being the labour shortage
24
Hohfeld, ‘Some Fundamental Legal Conceptions’ 36.
25
For a comparative perspective, see Peter Eulau, ‘Inducing Breach of Contract: A Comparison
of the Laws of the United States, France, The Federal Republic of Germany and Switzerland’
(1978) 2 Boston College Intl & Comp L Rev 41; James Crawford, ‘Second Report on State
Responsibility—Annex: Interference with Contractual Rights: A Brief Review of the Comparative
Law Experience’ (1999) UN Doc A/CN.4/498/Add.3.
26
See Francis Sayre, ‘Inducing Breach of Contract’ (1922–1923) 36 Harv L Rev 663; Hazel
Carty, An Analysis of the Economic Torts (2nd edn. OUP 2010) 30.
27
(1349) 23 Edw III. 28
Ibid.
caused by the Black Death.29 This is to say that at the time, the relationship
between master and labourer was thought by the law-giver to be of such
importance that third party interference with that relationship warranted an
additional remedy.30
This history is helpful in understanding the landmark case of Lumley v.
Gye, which is the foundation of the modern common law tort of inducing
breach of contract.31 In Lumley, Johanna Wagner, a famous opera singer, con-
tracted with Lumley, the manager of Her Majesty’s Theatre, Haymarket, to
perform exclusively at his theatre.32 Gye, the manager of a rival opera house,
made Wagner a more attractive offer. Wagner accepted the offer. Lumley
brought suit against Gye.
In his dissenting judgment, Coleridge J denied the possibility of an action
in tort in the following terms:
. . . in respect of breach of contract the general rule of our law is to confine its remedies
by action to the contracting parties . . . ; that, as between master and servant, there is
an admitted exception; that this exception dates from the Statute of Labourers, 23
Edw. 3, and both on principle and according to authority is limited by it.33
Coleridge’s dissent represented conventional understandings of the law in
1853: other than the master and servant cases deriving from the Statute
of Labourers, no remedy lay against a complicit third party to a breach of
contract.34 The majority disagreed, holding that principle and public policy
demanded that Lumley’s contractual relations with Wagner be protected
even against a third party.35 As Crompton J put it, ‘it would seem unjust, and
contrary to the general principles of law, if such wrongdoer were not respon-
sible for the damage caused by his wrongful and malicious act’.36 The court
thereby ‘freed the old enticement action from its roots in status relations’.37
To emphasize, the reading of Lumley v. Gye presented here sees the tort of
inducing breach of contract as a way to sanction an accomplice’s participation
in the breach of a legal duty owed by the principal. It sanctions a particular
29
Sayre, ‘Inducing Breach of Contract’ 665–6.
30
See Lumley v. Gye [1853] 118 ER 749, 765 (Coleridge J). This is to say nothing of the morality
or wisdom of the statute.
31
[1853] 118 ER 749.
32
For a historical account, see SM Waddams, ‘Johanna Wagner and the Rival Opera Houses’
(2001) 117 LQR 431.
33
Lumley (Coleridge J) 760. 34
Sayre, ‘Inducing Breach of Contract’ 666.
35
Lumley (Crompton J) 755. See Waddams, ‘Johanna Wagner’ 450.
36
Lumley (Crompton J) 755. It should be noted that in the end Lumley did not prevail in his
action. See Waddams, ‘Johanna Wagner’ 456–6.
37
John Danforth, ‘Tortious Interference with Contract: A Reassertion of Society’s Interest in
Commercial Stability and Contractual Integrity’ (1981) 81 Colum L Rev 1491, 1495.
form of complicity—inducement or procurement—with a particular fault
element—knowledge of the contract and intention to cause a breach of that
contract.38 It is derivative, in the sense that without the breach of contract
committed by the principal there can be no liability for tortious inducement
of that breach.39 It is a private law analogue of doctrines of complicity in
criminal law.
So complicity rules arise in surprising places. There is another lesson in
the inducement cases, one relevant to the evaluation of Article 16 ARSIWA
in Chapter 7. It is that the desirability of a prohibition of complicity outside
of criminal law cannot be settled by appeals to privity of contract or the
pacta tertiis rule.40 Instead, we should weigh up principled and policy reasons,
specific to the particular legal system, for and against holding the putative
accomplice responsible.41
In respect of inducing breach of contract, these are manifold. Some argue
that the value of the primary contractual relationship between P and V is
so great as to require special protection from third parties.42 This protection
may be explained by analogy to the law of property, such that V’s right under
the contract is treated ‘as a species of property which deserve(s) special pro-
tection . . . ’.43 An alternative conception is that the power to contract itself
gives rise to a secondary right against all third parties that they not induce
a breach of the contract.44 Other arguments look to the wrongdoing of the
complicit third party45 or a broader societal interest in the integrity of con-
tractual relations in a market economy.46 As Danforth puts it:
By extending the enticement action to allow tort protection against interference
with contract, the court in Lumley v. Gye implicitly recognized that in 1853 society’s
interest in a stable foundation for economic activity had shifted from a concern for
stability in status relations to a concern for stability in contractual relations.47
38
See Carty, An Analysis of the Economic Torts 35–45.
39
OBG Limited and Others v. Allan and Others [2008] 1 AC 1 [8]‌(Lord Hoffmann): ‘ . . . Lumley v.
Gye created accessory liability, dependent upon the primary wrongful act of the contracting party.’
40
See Hohfeld, ‘Some Fundamental Legal Conceptions’ 36; Waddams, ‘Johanna Wagner’ 451.
41
Sayre, ‘Inducing Breach of Contract’ 687; Andrew Simester and Winnie Chan, ‘Inducing
Breach of Contract: One Tort or Two’ (2004) 63 Camb L J132, 139.
42
See Roderick Bagshaw, ‘Can the Economic Torts be Unified’ (1998) 18 OJLS 729, 735;
Carty, An Analysis of the Economic Torts 55.
43
OBG v. Allan [32] (Lord Hoffmann). See Richard Epstein, ‘Inducement of Breach of Contract
as a Problem of Ostensible Ownership’ (1987) 16 J Legal Stud 1; Pey-Woan Lee, ‘Inducing Breach
of Contract, Conversion and Contract as Property’ (2009) 29 OJLS 511; Carty, An Analysis of the
Economic Torts 55.
44
Stevens, Torts and Rights 281.
45
See Lumley (Crompton J) 755; Sayre, ‘Inducing Breach of Contract’ 672–86.
46
Danforth, ‘Tortious Interference with Contract’ 1509. 47
Ibid.
Against these justifications is the claim that the tort action unduly limits the
interests of third parties in ordinary commercial activities.48 More broadly, in
Sayre’s phrasing, at stake here is the ‘very freedom of individual action which
the common law exists largely to secure’.49 On an efficient breach theory of
contract, it is argued, though not without contestation,50 that the tort liability
of the third party inducer limits the efficient allocation of resources.51 Others
look to how the tort plays out in the particular context of labour relations.52
This is not the place to judge the desirability of the inducement tort.
Instead, the tort serves to illustrate how ideas of complicity arise outside of
criminal law and that the desirability of and demand for complicity rules
turn on conflicting rationales shaped by the needs and purposes of the legal
system or regime itself.53 In addition, these conflicting rationales shape the
breadth of the complicity rule, determining the forms of complicity pro-
hibited, the requisite nexus between the accomplice’s act and the principal’s
wrong, and the fault required of the accomplice. Complicity rules are not
monolithic. Moreover, they may not be required to prohibit every form of
participation in every legal wrong. These two points are important in consid-
ering the existence and forms of complicity appropriate to the international
legal system.
2.4. Structuring Complicity Rules
2.4.1. Participation in Wrongdoing
States cooperate with each other and with non-state actors all the time, often
virtuously but sometimes wrongfully. Likewise, international crimes are
marked by their collectivity; orders are given, plans made, weapons provided,
detainees rounded up, and only then does someone pull the trigger.54 There
are many ways to participate in wrongdoing. This much is beyond dispute.
48
Sayre, ‘Inducing Breach of Contract’ 687; Harvey Perlman, ‘Interference with Contract and
Other Economic Expectancies: A Clash of Tort and Contract Doctrine’ (1982) 49 Uni Chicago
L Rev 61, 78–9.
49
Sayre, ‘Inducing Breach of Contract’ 687. See also Dan Dobbs, ‘Tortious Interference with
Contractual Relationships’ (1980) 34 Ark L Rev 335, 350.
50
See generally Fred McChesney, ‘Tortious Interference with Contract versus “Efficient”
Breach: Theory and Empirical Evidence’ (1999) 28 J of Legal Stud 131.
51
Perlman, ‘Interference with Contract’ 78–87.
52
David Howarth, ‘Against Lumley v. Gye’ (2005) 68 MLR 195.
53
See Pey-Woan Lee, ‘Inducing Breach of Contract, Conversion and Contract as Property’
(2009) 29 OJLS 511, 522.
54
See Tadić (Appeals Chamber Judgment) IT-94-1A (15 July 1999) [191]; Mark Osiel, ‘The
Banality of Good: Aligning Incentives Against Mass Atrocities’ (2005) 105 Colum L Rev 1751.
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II. OVERSEAS
Of that last journey from Devens to Boston on July 15th there is
nothing to chronicle. We were again for that brief period of time
individuals. Thought and not action crowded the hour. And what a
curious collection of thoughts they were. Each was absorbed with
the things nearest and dearest, soon to be far away. But there were
other, exciting thoughts. We were on our way! What boats were to
carry us? The sea! What were we going to accomplish? And that far-
away France,—what was it like? And war, what was it like? Would
we come back?
The train stopped. “Fall out”. There was a scramble for one’s
possessions, followed by another for our places on the platform. We
were marched on board and to our bunks, where we left our
belongings and hastened on deck. All was again hustle and
excitement. The gang planks were lowered, the hawsers dropped.
The whistles were blowing and we were off for France,—off for the
war, July 16th, 1918.
Our boat was the “Winifredian”. Soon we were absorbed in our
surroundings. There were twenty-three ships in our convoy, curious
in their camouflage, but then all was strange to most of us, who were
not used to ocean liners. And the harbor had its fascinations.
Comparatively speaking we were men of leisure. Jest once more
asserted itself. Our quarters while not altogether to our taste, like
most other things in the army would have to do, since there was no
alternative. We turned in and strangely enough we slept.
Then sounded that good old familiar bugle with the good old familiar:
“We can’t get ’em up,
We can’t get ’em up,
We can’t get ’em up in the morning;
We can’t get ’em up at all.”
Where were we? Oh yes! On our way to France. We dressed
hurriedly and got up on deck. The convoy was still there but not all of
it. Four ships had disappeared and various theories were
propounded. But just as the official dopster had got them well sunk
by a submarine and was counting the casualties, it was announced
that they had put into Halifax. Apparently the convoy was too large
and unwieldy, so four boats had to drop out, one of which was the
“Novara” with the 301st on board. However the other two regiments
were still in the convoy and we proceeded on our way. We had boat
drill and we wore life preservers, and we got rather bored with both.
As for guard duty and setting up exercises they bored us eight
months before. Seasickness is preferable to either, and there were a
good many of us sick.
While we were sailing merrily across the North Atlantic, the 301st
had disembarked at Halifax and was playing with the Canadian
troops there and thereabouts. But it was only for a week, when they
were again on their way, this time on the “Abinsi”.
As the 301st left Canada, the other two regiments landed in England,
one at Liverpool, another at Bristol, and Brigade Headquarters at
Avonmouth on July 31st.
The next novelty was the English railway carriage or coach, as they
call it. It was the latest model limousine with side entrances and
compartments. We tried them and landed at Camp Mornhill near
Winchester, where we found the twenty-eight officers of the 302nd
who had sailed from Boston just ahead of us. A week later the 301st
came to Winchester, but they had become somewhat exclusive in
Canada and so on August eighth they went to Romsey instead of our
camp. Winchester apparently produces a good deal of mud and a lot
of rain. At any rate it was not sufficiently alluring to detain us for long.
We proceeded to Southampton. “I say does it always rain here?” But
before our British friend got around to answering us we were again
on the move,—this time to a Channel steamer, and France. So we
were really going to France and the war, and not for a tour of the
world.
On August 3rd the steamer that took Brigade Headquarters and the
303rd across the English Channel, or La Manche as the French call
it, was one of our own,—and hence, a good boat. She used to run
between Boston and New York, and her name used to be “The Yale”.
Than which there is but one better: “The Harvard”. The 302nd
crossed on her the next day.
The 301st was still about a week behind the rest of the Brigade.
They sailed from Southampton on August 14th and also landed at Le
Havre.
“So this is Frogland! Look at the frogs,—wooden shoes and all! Even
the little children speak French here.” But they did not give us time to
get acquainted. Again we were off, this time on a French train. They
have them like the British, but this one looked like the variety we
used to play with as kids, only each car says on the outside “40
Hommes, 8 Chevaux.” We knew not what it meant but the stench
was indicative.
Two days got us to Bordeaux. We arrived on August 6th and Brigade
Headquarters was established on August 7th at Gradignan in a very
attractive villa with beautiful grounds. The 301st also established
Headquarters at Gradignan, on August 17th, and billeted their men
in the village. You will notice that here they were more than a week
behind us. They account for this by an aeroplane attack at Rouen.
The 302nd was billeted in two little villages, Ville Nave and Pont de
la Maye, a few kilometres from Brigade Headquarters. The 301st
Ammunition Train was at Cadaujac.
We seemed doomed to lose a regiment. At Havre the 303rd was
ordered to Clermont Ferrand for its training.
While the regiments were en route from the United States to France,
the Advance Schools Detachment of the Brigade were wandering
over Europe. From Liverpool they went to Southampton and Le
Havre, then to Le Valdahon near the Swiss border. There they spent
a couple of weeks and saw some American artillery training and a
few Hun planes. From Le Valdahon the contingent from the 303rd
went to Clermont and those of the other two regiments went to
Souge, near Bordeaux.
It was about this time that we were informed that we were no longer
a part of the 76th Division, but were to be a Brigade of Corps
Artillery. It did not cause many tears as the 76th was already doing
duty as a replacement division with no chance of going to the front
as a unit. Our tables of organization were changed accordingly and
we were rapidly equipped for duty in our new capacity. The 303rd
regiment was issued G. P. F.s, the famous French 155 m. m. long
rifle with a range of about 17,000 metres. The 301st got the world
renowned French 75, the best known gun of the war, and the 302nd
got American 4.7 rifles about which nothing was known.
While in Gradignan and vicinity our days consisted largely in getting
acquainted with our new guns. We also learnt French and paraded.
Some of our number were detailed to join the Advanced Schools
Detachment at Camp de Souge, August 14th.
On August 25th the London Evening Mail published the news of
General NcNair’s promotion. We were of course glad of the
obviously merited reward, but selfishly would rather have had it
otherwise, for of course he would cease to be our Brigade
commander. However, at the time we consoled ourselves with the
thought that he might command the Corps artillery of which we
would be a part. That night there was a dinner and celebration at
Brigade Headquarters. The scene was picturesque and one to be
remembered. The French Mayors of the villages where our troops
were billeted were invited and came. The meal was served on the
lawn under a huge tree in those beautiful gardens. A hundred yards
down the lawn through the trees we could see the 301st band,
conducted by Lieutenant Keller. They played as even they had never
played before. The villagers, hearing the music, flocked to the gates
and the General sent word to the guard that the sentries were to let
them in. In they came and went straight to the music. Sitting on the
lawn they made a huge circle around the band, and gave our
Headquarters a very festive appearance. It was a rare occasion for
them. Lovers of music that they were, it was seldom that they had an
opportunity to hear it. Their own bands had long been busy nearer
the front.
On September 5th and 8th the two regiments, 302nd and 301st
respectively, moved to Souge for the final six weeks firing before
going to the front. We made the trip, some twenty miles, with our
own transportation. Brigade Headquarters was established at the
camp on September 8th and the Ammunition Train moved in the
same day.
Souge is located in the middle of a sand desert at the end of the
world. As far as you can see there is not a landmark to relieve the
monotony. It is as flat as a table all the way to the sea, some twenty-
five miles distant. As Major Hadley of the 301st remarked: “It is a
nice beach but where is the water?” Souge may best be described
as follows,—a camp some two miles long of ramshackle, broken
down, foul smelling barracks in the middle of the desert which was to
be our range. Flies, sand, dust and heat were in abundance, as were
dysentery and the “Flu” at times. The flies were like ours except
larger, more abundant and infinitely more obnoxious. As one of our
men wrote home, he was in the hospital as a result of having been
kicked by a fly.
Of all the camps in the A. E. F.
Whether S. O. S. or zone of Advance,
You will cuss until you’re out of breath
This Camp de Souge in France.
But there we were. We ate the dust, we killed flies and we sweat in
the sweltering heat, as we pulled guns, trucks and tractors through
that damnable sand.
On September 21st the long dreaded orders for Major-General
McNair arrived and with them Secretary of War Baker, General
Tasker Bliss and a flock of Major Generals and Brigadiers. That
same day he relinquished the command to Brigadier-General
Richmond P. Davis and left camp to take command of the Artillery of
the First Army.
The finishing touches were applied. We were inspected. We passed
our examinations and were ready for the front. When would the
orders come? There were already rumors of peace,—were we to
miss the party after a year and a half of preparation? The thought
was nauseating, but we stuck to our work. We knew our Brigade
Commander was a hustler. We could see it, and General McNair had
said so. Confidence ran high.
We had an abundance of ammunition and General Davis ordered a
problem to cover three days. The guns were to go into position at
night and without lights; they did. We established communication by
telephone, radio and projector, and maintained it. Conversation was
in code and cypher. We were to fire an offensive barrage over the
infantry; it was done. The infantry called for a defensive barrage at
11.40 at night; it was layed before the rocket burst.
Altogether in this problem of four regiments the 75s fired about 6,000
rounds and the 4.7s about 600.[B]
In the meantime it rained, or rather poured. The heavens were trying
to make good for the past six months of inaction,—they did. Or
perhaps it was the 302nd weeping for the now certain loss of Colonel
Craig. He had received his promotion and it was only a question of
time before his orders would arrive. Loved and respected by all who
knew him, he was to leave a vacancy hard to fill. His officers gave
him a dinner in Bordeaux on October 7th.
III. THE FRONT
It was while our problem was in progress that General Davis and
part of his staff left for the front, October 11th. A few days later, on
October 17th, he was followed by the rest of his staff. So the
regiments polished and oiled their materiel and entrained at the
camp for God-knows-where. One thing was certain and that was we
were going forward and not back, for from Bordeaux it takes a boat
to go in the latter direction. It was at this time that we knew definitely
that the 301st was to leave the Brigade. It was to be army artillery
and received different orders, confirming our fears when it was
detached by telegraphic order of October 2nd.
Hardly had the General with a few members of his staff arrived at the
front when a stray shell killed his aide, Lieutenant W. B. Dixon, Jr.,
October 19th, 1918. He was buried with military honors where he fell
near Bouillonville. He had been with us but a few days, but such was
his personality and charm that he had become as closely identified
with the Brigade as the oldest member of the staff. His death was a
personal loss to every one of us.
Brigade Headquarters was established at St. Mihiel, Meuse, October
19th, 1918, and the entries in the official War Diary begin. I have the
diary before me as I write, and I feel that I cannot do better than take
the information therein practically word for word as it was recorded
each day from October 19th to November 11th.
The famous salient of St. Mihiel had been wiped out a month before.
Having held it successfully for four long years, the Germans
considered their lines there impenetrable; but it took the Yankees
just two short days, September 12th and 13th to reduce that four
years’ work to nothing, and on our side of the balance sheet now
stood several thousand prisoners and a few hundred guns. It had
happened a month before, but the battle fields were still fresh with
Hun relics and ruins, and one had but to see to know that Heine and
Fritz had lost no time in their departure. Everywhere ammunition
dumps and other stores were left untouched by the fleeing foe.
October 19th the 151st Field Artillery Brigade, less one regiment (the
301st) was attached to the 2nd Colonial Corps (French) of the
Second Army, A. E. F., as corps artillery, with its rail head at Sorcy
and its Refilling Point at Woinville. The zones and mission of the
Brigade were assigned. In a general way our sector extended from
Bonzee to Vigneulles. The line in this sector ran roughly northwest to
southeast, the Germans holding the villages of Ville en Woevre,
Pintheville, Riaville, Marcheville, St. Hilaire, Doncourt and Woel.
October 21st was devoted to reconnaissance. The commanding
officer, Colonel Conklin of the 303rd F. A. and staff arrived. An air
raid by the enemy occurred at 7.00 p. m. They are all alike. This is
what happens. Delicate instruments more sensitive than the human
ear detect the sound of the aeroplane’s engines at a great distance.
These instruments are placed at intervals along the lines at what are
known as listening posts or stations. Directly an enemy plane is
detected, its whereabouts and direction are telephoned to the areas
behind. There, the fact is announced by a bugle call, followed by
rattles, sirens and every other variety of music. This is the first you
know of the “ships that pass in the night.” There is a scramble for the
nearest abri, otherwise known as bomb-proof or dug-out. You
stumble and fall down a flight of steps and find yourself from twenty
to forty feet below ground. It is dark, and the air is damp and smells
vilely. There are from fifty to a hundred other humans in this
subterranean tomb, some lie down, prepared to spend the night,
others, half-clad, shiver and wait. Then out of the distance you hear
a faint humming as of insects in summer. It grows louder. It is the
engines of the enemy’s planes. Suddenly Hell is torn loose. The anti-
aircraft guns or Archies, as the British call them, have opened fire
from the ground. The planes return the compliment with bombs and
machine guns. A boiler factory in your head would not be nearly so
bad for your ears as the cracking and shrieking that takes place. As
suddenly as it started it ceases. All is quiet. We go about our duties
or sleep, as the case may be, until the next raid occurs. If it is a clear
night and the planes are likely to return, there are many who prefer
to stay in the dug-out and make a night of it there rather than spend
the time until morning running back and forth.
October 22nd the work of reconnaissance for battery positions and
P. C.s[C] continued. More enemy planes were seen over St. Mihiel.
But this time it was broad daylight; they reconnoitered and took
photographs, but there was no battle royal to disturb the peace.
Suddenly little balls of cotton appeared about the plane. They were
the bursts of some distant anti-aircraft battery trying to annoy the
aviator.
October 23rd the commanding officer (Colonel Platt) of the 302nd F.
A. and staff arrived. In the afternoon enemy airplanes made a
reconnaissance. The regimental advanced parties arrived.
Reconnaissance was the chief work of the next few days. Lieutenant
Colonel McCabe of the 302nd taking the area to the north of Bonzee.
The Germans must have had the same idea, for enemy aircraft
continued to pass over Headquarters.
On October 28th the 33rd Division relieved the 79th Division in this
sector, the 55th Field Artillery Brigade remaining in place, with its
Headquarters at Troyon (P. C. Kilbreith).
Brigadier-General Daniel F. Craig
By November 1st all the battery positions and P. C.s were located
and billets were obtained for the regiments. Colonel Platt of the
302nd F. A. chose some old German shelters near the one-time
village of St. Remy for his P. C. His batteries were to be scattered
through the Bois des Eparges, mostly to the north. The 3rd Battalion
was to be behind the hills to the eastward. The country looked like
pictures of the moon sometimes reproduced in scientific magazines
because of interest but never on account of beauty. Once there had
been woods; now there was hardly a tree standing. All vegetation
had been killed by gas and shell,—crater after crater gave mother
earth a very diseased appearance. Here we spent our days and
nights while the war lasted. Colonel Platt chose Rupt for his billets.
Colonel Conklin in selecting his P. C. showed better taste. He found
an old German Headquarters, built like a Swiss chalet in the heart of
the woods and far away from harm. Here he settled comfortably, two
kilometres to the northeast of Deuxnouds and just South of the
Grande Tranchee de Calonne. He had but two battalions. The first
he placed to the east of his P. C., the second about four kilometres to
the north.
This same day liaison was established with S. R. S. No. 3 American,
and on November 2nd with S. R. O. T. Nos. 58 and 67.
November 3rd the Brigade Headquarters detachment arrived and
was billeted in St. Mihiel, and information was received that the
302nd F. A. had detrained at Dugny and was moving into Rupt en
Woevre.
November 4th information was received that the 303rd F. A. had
detrained at Dugny and was moving into Creue. The 3rd Battalion of
the 303rd was assigned to the Fourth Army Corps.
November 5th the Second Battalion of the 302nd reported its guns in
position and ready to open fire. Hardly was this accomplished when
the Huns began to give them a taste of gas, over 3,000 rounds being
reported. One gun of Battery B, 303 F. A. was reported to be in
position. The Brigade was detached from the 2nd C. A. C. (French),
and was put under the command of the 17th C. A. (French).
November 6th one gun of the 303rd F. A. was ready to fire at
midnight and the other guns were being moved up as fast as the
positions were constructed.
From 10.00 p. m. November 6th to 2.00 p. m. November 7th, about
3,000 gas shells, mostly mustard, fell near B and F Batteries of the
302nd F. A., but though other artillery units nearby had a number of
men gassed, the 302nd F. A. had no casualties, thanks to strict and
effectual gas discipline.
In the vicinity of P. C. Gross, Second Battalion of the 303d, about two
hundred gas and high explosive shells fell, also without casualties.
In the afternoon Field Order No. 1 was issued directing the 302nd to
deliver harassing fire during the night on Ville en Woevre and on the
roads from that place to Braquis and Hennemont. The 303rd F. A.
was to fire on Hennemont, Pareid, Maizeray and Moulotte. At 6.10
the orders were changed by telephone on account of later
information, with the result that the 302nd F. A. took under fire two
additional targets, which were identified only by their coordinates.
The 303rd fired at Pareid and Moulotte and on a battery in the Bois
de Harville.
On the night of November 6th and 7th, in a two company infantry
raid with artillery support against the Chateau d’Ardnois, one
German officer and twenty-two men were captured and from ten to
fourteen killed. Our own casualties were slight. There was very little
enemy artillery fire during the day. At 9.15 however, on the night of
November 7th, the operations officer of the 55th Field Artillery
Brigade at P. C. Kilbreith reported heavy shelling by the enemy of
Fresnes en Woevre. This village was now strongly held by our
troops, and it was thought that the German fire was in retaliation for
the raid. Our Sound Ranging Section S. R. S. No. 3 had located the
enemy batteries that were executing the fire and we were asked for
neutralization at the earliest possible moment. This order was sent to
the 303rd F. A. by courier and telephone. At 11.00 a. m. the enemy
having ceased his fire, the 303rd F. A. was ordered to discontinue
firing. Field Order No. 2 was then issued authorizing the 303rd F. A.
to fire at once for neutralization upon any enemy battery reported in
action beyond Maizeray. In the meantime Major Hadley’s Battalion of
the 302nd F. A. was fired upon by the enemy with gas shells.
Captain Lefferts was the only casualty.
On November 8th two strong patrols of our infantry, sent early in the
morning to the Bois de Harville and St. Hilaire, brought back three
prisoners. The 33rd Division reported considerable harassing fire
about Les Eparges and Saulx en Woevre, with some interdiction fire
on the villages at the base of the hills. The total was about 3,000
rounds. This was the first day that the air was clear enough for the
G. P. F.s to register, and Colonel Conklin registered on Joinville.
Shortly after 4.00 o’clock, Balloon No. 22 reported two batteries
firing. They were given to the 303rd F. A. for immediate
neutralization. In the meantime, orders had been sent out for the
night’s firing, the targets assigned to the 303rd F. A. being two
batteries of 105 howitzers in the Bois de Harville and the towns
Maizeray and Butgneville. The 302nd F. A. was given the Pintheville-
Maizeray road, the Pintheville-Pareid road, Maizeray, Butgneville
and St. Hilaire, the latter being the most important. The fire was to
stop at 3.00 a. m. to permit an infantry raid to go into St. Hilaire and
the vicinity. These orders, sent by telephone and courier, were in
response to a request for help from the Divisional Artillery. They were
followed by a Memorandum to the regiments designating the zones
in which, after the start of the infantry raid on November 9th, it would
not be safe for them to fire without express authority.
On November 9th a change of organization occurred as a result of
the removal of a large part of the French Artillery from the sector.
The two batteries which were left,—one of 120 long and one of 155
long,—were taken over by General Davis and assigned to the
command of Colonel Platt of the 302nd F. A. in what then became
known as the Groupment Platt. General Davis thus became
Commander of the Corps Artillery of the sector.
Early in the morning of this same day, a request was received from
the infantry through the Operations Officer of the 55th Field Artillery
Brigade for help in a raid. It appeared that lack of ammunition for the
Divisional artillery threatened to deprive the infantry of much needed
artillery assistance. Orders were issued for concentration fire
between 2.00 and 5.00 a. m. on Maizeray, Butgneville and St. Hilaire
and between 5.00 and 6.45 a. m. on Maizeray and Butgneville. With
the approval of Corps Artillery Headquarters the regiments were
permitted to use ammunition beyond that authorized for daily
expenditure.
The strong reconnoitering patrols sent out by the 33rd Division
executed the raid on Marcheville. It was completely successful and
resulted in the capture of eighty prisoners including three officers.
Patrols near Pintheville and Riaville met strong resistance. At 3.50 p.
m. an enemy barrage of about 4,000 shells was laid down between
Fresnes and Wadonville, probably in retaliation for the raid of the
previous night. Orders were issued that the regiments should fire at
once on any batteries reported in action by the Sound Ranging
Section (S. R. S. No. 3) and that every clear day should be utilized
for registration. During the afternoon the 303rd F. A. was directed to
fire on two batteries of 210 howitzers,—one near Labouville and the
others northeast of Joinville,—and on a battery of medium calibre,
just south of Moulotte.
Late in the afternoon we were informed that an infantry raid would
take place at H hour next morning on our front. The Groupment Platt
were ordered to fire on Maizeray and on the road between
Pintheville and Maizeray. The 303rd was to fire on Maizeray, Harville
and the same stretch of road and on batteries reported firing from
points back of Maizeray. The fire of both groups was to last for 105
minutes after H hour and at 2.20 in the morning, notification was sent
by courier to the commanding officers of the two regiments that H
hour would be 5.45 a. m.
At 8.30 in the evening the General ordered a concentration by the
302nd F. A. on Riaville, Pintheville and the road connecting them, to
be fired between midnight and 3 a. m. At 8.45, the 303rd F. A. was
given counter-battery work in answer to a call from the Divisional
Artillery Headquarters.
Upon the change in organization mentioned above, the advanced
location for our Brigade P. C. was fixed at Creue. The regiments
were ordered to reconnoitre to find locations for at least some of their
guns out on the Plain of Woevre where they would be able to reach
some of the German long range artillery which had been bothering
us, and also follow up the advance of our infantry for a long distance
without changing position for a second time.
On November 10th a general advance was ordered to begin at 7.00
a. m. but the order did not reach our Brigade. However, this
information was obtained incidentally by the Brigade Commander,
and at 10.40 a. m. orders were issued for the regiments to provide
advance telephone lines, with a view to establishing forward P. C.s.
At the same time the Brigade P. C. was opened at Creue. A series of
orders were issued over the telephone with reference to a change of
positions by the 302nd F. A. and the 303rd F. A. and at 11.48 we
received orders from the corps that the 4.7 regiment must advance
as soon as possible. Orders were sent to them to complete all
reconnaissance and prepare to move immediately. At 1.25 orders
were received from the corps to move two batteries of the 303rd F.
A. with 400 rounds of ammunition at the tail of the main body of the
33rd Division in advance. It was thought that this was based on the
supposition that the enemy was going to retire, which he had no
intention of doing, as later developments showed.
At 4.00 o’clock in the afternoon, word having been received that the
country to the north and east of Bonzee was occupied by the enemy,
an officer was sent to the 33rd Division occupying our sector and
another to the 81st Division on our left to find out the true state of
affairs. There proved to be no basis whatever for this report, as the
33rd Division was holding its forward line in great strength with a
view to attacking on the morning of the 11th, and the 81st Division
was also reinforced for a continuation of their attack, begun on the
10th.
General Bailey, commanding the 81st Division and Colonel Roberts,
Chief of Staff, urgently requested artillery help in their attack on Ville
en Woevre, Hennemont and other points. The Brigade supported
these attacks between 5.00 and 7.00.
The commanding General of the 33rd Division, having received
orders to advance, called for support from the Corps Artillery on
Pintheville, Harville, Moulotte, Maizeray, Pareid and batteries in the
Bois de Harville and elsewhere. This support was given between
9.25 p. m. November 10th and 5.00 a. m. November 11th.
At 7.30 p. m. the 302nd F. A. was ordered to move one battalion into
the advanced positions in the Plain of the Woevre and to have
another battalion in motion so as to reach its advanced position on
the 11th while the guns held in reserve were to continue the firing.
One battalion, in accordance with these instructions, took position on
the Plain of the Woevre near Tresauvaux, well in advance of the
main body of the infantry and of the resistance line. It remained there
overnight and until ordered to withdraw on the morning of the 11th,
when news was received that the armistice had been signed.
In the meantime, three guns of the 303rd F. A. were successfully
moved into similar forward positions from which, if fighting had
continued, they might have done highly effective work against some
of the distance long range German guns, especially those that had
been bothering St. Maurice, Thillot and other towns along the base
of the hills. The Brigade fired 736 rounds in the course of the day,
against a number of different targets assigned from time to time by
Brigade Headquarters, or reported direct to the regiments by the S.
R. S.
At about ten o’clock on the night of the 10th the French corps
commander under whom we were serving, said he expected
important news from the Eiffel Tower wireless station before morning.
He asked Brigade Headquarters to notify him should our wireless
pick up anything of interest. Taking the daily communiques from the
Eiffel Tower had been part of our routine work, so the operators
knew her[D] voice intimately. Accordingly they were not unduly
surprised when she started her familiar squeak early on that historic
morning. Received at 5.45 a. m. November 11th, the message that
the armistice had been signed and that hostilities were to cease at
11.00 a. m. was reported at the Brigade P. C., Creue, by telephone
from the St. Mihiel Headquarters. To the credit of the Brigade let it be
known that it was from our station that the news was given to the
entire sector.
The 33rd Division attacked at 5.00 a. m. Strong patrols sent out
along the front captured three officers and eighty-three men. Infantry
lines were established at the close of hostilities as follows: Chateau
d’Aulnois, Riaville, Marcheville, St. Hilaire, south of Butgneville, Bois
de Harville thence southward to Ferma d’Hautes Journeux. These
towns were taken on the morning of the 11th. It was a glorious piece
of work but hardly worth the price in American life it involved. The
Germans, pushed to the limit, made a last stubborn resistance and
from behind their fortifications and barbed wire delivered a
murderous fire on our troops with rear guard machine gun action
from hidden nests. The battlefield as I saw it that afternoon, I shall
not soon forget. There lay an American sergeant, where he had
fallen, and behind him lay his men, not twenty yards from the
German machine gun they were attacking. My thoughts were first of
sorrow that these men should have made the supreme sacrifice in
those last minutes of the great war. In those fine young faces still
shone the joy of life, theirs but yesterday, when they had thought of
home and all it held in store. But I read another story, that of peace,
such as is only experienced after a hard struggle won and as I
looked at the scene I felt a thrill of pride. What a sacrifice! but God,
how gloriously made!
The plans for the early morning attack contemplated prearranged
firing by the Corps Artillery until 7.00 a. m. Information that the
Armistice had been signed having arrived at 5.45 a. m., the Heavy
Artillery Commander at that hour ordered no more firing, unless
urgently called for by some infantry unit which was in need of help or
was being effectively shelled. The advance Brigade P. C. at Creue
was closed at 11.00 a. m. Ammunition had been brought up during
the night and the corps artillery stood ready with some of its guns
advanced beyond the main line of resistance, to support fully a
further general infantry attack.
At 10.55 on the morning of the Armistice, the 303rd Band at Creue
played taps, then the Marseillaise, then the Star Spangled Banner
and then Reveille. All that morning the artillery thundered and was
still thundering when the music started. When it stopped, all was still.
On the afternoon of November 12th I walked along our front between
the lines. The stillness of peace was upon the earth where but
yesterday the din of bloody battle reigned. Our lines were held by a
series of sentries walking their posts as if on parade. Over yonder
the Germans were doing likewise. The sun shone in gladness upon
the scene. The air was crisp and the reliefs were gathering wood for
their fires. As the shadows grew longer and the sun set in a blaze of
glory, the figures of the sentries grew dim, but their positions became
identified by the bonfires they had kindled which now alone marked
the lines. As I turned to go, rockets once used to call for a barrage or
as a warning of gas lit the sky. Thus ended the war.
SUMMARY
A resume of the history of the 151st Field Artillery Brigade during its
short term at the front shows a great variety of services and
connections.
Originally constituting a part of the Artillery of the Second Army, the
Brigade was attached on its arrival in the zone of advance to the
Second Colonial Corps of the French army in the Troyon sector,
where it served under General Blondlat, Corps commander and
General Jaquet, Chief of Artillery.
The Second Colonial Corps was relieved by the 17th French Corps,
General Hellot commanding, General Walch, Chief of Artillery. On
October 29th, the Brigade came under their command.
On November 13th the Brigade was assigned to the Fourth
American Corps. When the Fourth Corps moved forward at 5.00 a.
m., November 17th, the Brigade passed into the Second Army
Reserve. When the regiments first came into the St. Mihiel sector,
the infantry holding it were the 79th Division of the American Army,
General Joseph E. Kuhn commanding; the 39th French Infantry
Division and the 28th French Regiment of Dismounted Cavalry. On
the 28th of October, however, the 79th was relieved by the 33rd
American Division, General George Bell commanding.
The 39th French Infantry Division and the 28th regiment of
Dismounted Cavalry were withdrawn and the sector of the 17th
Corps was from Vigneulles to Bonzee.
The Corps Artillery, 151st Brigade and two batteries of French
Artillery à Pied, covered the entire front of fifteen kilometres.
This is the story of our few days at the front before the Armistice, and
this is what we did in the actual fighting.
I have been obliged for lack of space and knowledge to omit those
things most interesting to the individual—little incidentals, perhaps
from the point of view of the rest of us, but to him they constituted
the war, and always will. For this reason they will remain forever vivid
pictures in his memory and are therefore not necessary to chronicle.
At the same time it will do no harm to recall a few more facts and
feelings that all in one way or another experienced during that
momentous although brief period of our lives. Mud is perhaps the
foremost to the author. But there were others. At night there was not
a light as we stumbled and cursed, feeling our way in those ruined
villages; automobiles and trucks travelled similarly without lights in
the jet blackness, sometimes on the road but more often off it. And
the drivers, let us not forget them and their troubles: the sinking
feeling in the region of the stomach as the truck, laden to its limit with
ammunition, would itself first sink and then stick in that sea of mud.
Tired to the point of exhaustion, they would dig for hours and get out
only to be in again a hundred yards down the road. Or perhaps
Buddy, with his truck, would try to pull us out with the result that he
too got stuck. Then there were the nights spent going into position
where the impossible was often accomplished,—that was work such
as few outside of the army will experience,—but it was exciting and it
was necessary, and that explains how it was done. Following this
were the nights spent in serving the guns,—sleepless nights,—but it
was fun, and the excitement made it interesting. Last but not least,
let us recall for a second, if we can, how it felt to be under fire,—but
most of us were too busy and tired to have any feelings. Such as
they were they were hardly pleasant.
While most of the Brigade was thus solving its troubles, the 3rd
Battalion of the 303rd was having troubles of its own. Detached from
the Brigade and assigned to the Fourth Corps on November 4th,
they were ordered to take a position a thousand metres in front of
the Seventy-fives and about the same distance behind our own front
line. The terrain assigned them for their guns was a wooded swamp,
perhaps a thousand metres from the road. It was down this road that
they brought their guns under practically continuous enemy fire. Nor
did the fire stop when they reached their positions. Just as regularly
as the half hours came around on the clock so did the Germans go
the rounds of these two batteries and Battalion Headquarters with
high explosive and gas. There were many narrow escapes but no
serious casualties. The dispersion of the German guns and the
regularity with which they fired were alone responsible, so say the
Third Battalion. But I am inclined to think, in spite of German
declarations of “Gott mit Uns”, that the Bon Dieu was on our side; for
besides the elements above mentioned, practically every direct hit or
what was so close as to amount to a direct hit, proved to be a dud.
Of the labors involved in taking this position and the will that
delivered the goods we cannot say enough. The job was done and
done gloriously.
While the Brigade, minus one regiment, was disporting itself in and
about St. Mihiel, that regiment, the 301st F. A. was ordered to
another part of the front, November 2nd. Accordingly they went to
Neufchateau near Chaumont, where they were to become a part of
the Army Artillery for the 1st army. There they were held in reserve
and obliged to wait for further orders, which did not come. Finally it
was learnt that they were to move forward and take up positions
about November 12th, but the Germans also hearing of this, signed
the Armistice on the 11th. So it was that our lost regiment did not get
into action. We sympathize with them, but we do not feel as they do,
for we know the goods were there and given the opportunity, would
have been delivered. On November 29th they were ordered to
prepare for return to the United States. Many miserable weeks
followed at Brest, but finally, one glorious day, the Statue of Liberty
appeared before them and January 6th, 1919, they landed in New
York from the good ship “Nieuw Amsterdam”. In this the rest of the
Brigade fared not so well.
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Complicity in International Law

R ECENT TITLES IN THE SER IES

Complicity is a subject that lends itself to an appreciation of assistance and

PA RT A.â•‡ A THEORY OF COMPLICIT YÂ€

2. The Structure of ComplicityÂ€ 10

PA RT B.â•‡ COMPLICIT Y IN INTER NATIONA L

7. State Complicity in the Internationally Wrongful Act of

8. State Complicity, Non-State Actors, and Attribution 176

INTERNATIONAL COURTS AND TRIBUNALS

Permanent Court of International Justice

International Criminal Court

International Criminal Tribunal for Rwanda

International Criminal Tribunal for the former Yugoslavia

Special Court for Sierra Leone

Post-Second World War Trials

European Court of Human Rights

Inter-American Commission on Human Rights

Inter-American Court of Human Rights

United Nations Human Rights Committee

United States of America

OTHER PRIMARY AUTHORITIES

RESOLUTIONS OF THE UNITED NATIONS GENER AL ASSEMBLY

UNITED NATIONS INTERNATIONAL LAW COMMISSION

UNITED NATIONS TREATY BODIES

United States of America

England and Wales

ARSIWA Articles on Responsibility of States for Internationally

1.2. The Structure of the Work

1.3. The Scope of the Work

2.2. A Definition of Complicity

2.3. The Wrongness of Complicity

2.3.1. Moral and Legal Wrongs

2.3.2. An Analogy to Inducing Breach of Contract in

2.4. Structuring Complicity Rules

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2.3.1. Moral and Legal Wrongs

2.3.2. An Analogy to Inducing Breach of Contract in