To the Editor:
The Chatham House paper on “Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism,” (see, State Complicity in Other States’ Bad Acts—and How to Avoid It by Harriet Moynihan) very consciously concentrates only on state responsibility and does not address questions of individual criminal or civil responsibility. The paper does contain a brief section: “Other Rules of International Law Relevant to Aiding or Assisting,” which says that “(t)here is also a link between individual criminal responsibility for complicity and state responsibility for complicity.”
Ryan Goodman recently provided a helpful and detailed explanation of the distinction between state and individual criminal responsibility here. While it’s unlikely that a State will prosecute its own agents for acts that it authorizes, the risk of prosecution is real. Regimes change. Amnesties can be undone. The summer-in-Tuscany plan may be risky for CIA torturers.
The court may be domestic (as in Italy for CIA torturers) or international. As we speak, the International Criminal Court is investigating U.S. war crimes in Afghanistan. Even though the US is not a party to the ICC, Afghanistan is, and the court has jurisdiction over crimes committed on the territory of a state party, even if the suspect is not a national of a state party.
In assessing the risk of prosecution, officials should be aware that some crimes are considered so heinous that they are subject to universal jurisdiction — that is, they can be prosecuted by any state, even one that has no direct connection to the events, perpetrators or victims. In fact, the Torture Convention, the Genocide Convention and, in the case of international armed conflicts, the Geneva Conventions not only permit, but require, parties to search for and either try, or extradite for trial, persons suspected of certain offenses prohibited by these treaties, regardless of where on earth the offenses occur.
Bottom line: folks in official capacity should be aware that just because their State may not incur legal responsibility for complicity in the war crimes or other human rights violations of other States, that does not mean they, themselves, are immune from criminal accountability or civil liability, whether at home or abroad.