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Michael Byers
International law has long been seen as a "primitive legal order" lacking key components such as a generally applicable enforcement mechanism.1 There is some truth to this view, as evidenced by the long absence of another component that is common to developed legal systems, namely responsibility for actors who deliberately aid, assist, or are otherwise complicit in illegal acts.
In 2001, the International Law Commission moved to close this gap with Article 16 of its Articles on State Responsibility:
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.2 The timing of Article 16 was fortuitous, for in the past decade the issue of complicity has moved to the centre of debates about international law. If the 2003 invasion of Iraq was illegal - as many now believe it was - were non-participating countries that allowed the invading forces to use their airspace or territory also violating international law? If the United States' programme of "extraordinary rendition" was illegal, what of those countries that allowed the CIA to use their airspace and airports, or to set up secret prisons within their territory? Neither Article 16 nor its supporting commentary can fully answer these questions,3 and this is where Helmut Philipp Aust's excellent new book comes in. A Senior Research Fellow at Humboldt University in Berlin, Aust provides a comprehensive examination of state practice as it relates to complicity, along with a thought-provoking theoretical discussion of where the concept might fit within the current and future development of international law.
