Overlap Between Complicity and Positive Obligations: What Advantages in Resorting to Positive Obligations in Case of Partnered Operations?

Abstract

Partnered operations are very frequent and pose complex questions in international law, such as the allocation of responsibility in cases of violations of international human rights law and/or international humanitarian law (IHL). The present article deals with the question of complicity in partnered operations between States and between States and/or non-State actors, focusing on the possible overlap between responsibility for complicity and responsibility for breach of positive obligations in partnered operations in the light of the relevant case law of the International Court of Justice and of the European Court of Human Rights. As the requirements laid down by art. 16 of the International Law Commission Draft Articles on the Responsibility of States with respect to complicity are often difficult to meet, the author intends to explore the potential advantages of resorting to positive obligations in light of the due diligence standard. Although the article focuses primarily on human rights violations, in the final section the author investigates the benefits of this approach also with respect to breaches of IHL.