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Monday, April 11, 2011

All to Blame in Ivory Coast? Shared Responsibility for International Crimes

Cross-posted on SHARESprojectBlog

[more about the SHARES project here]

Ivory Coast is becoming a political nightmare. Indeed, with the evidence of crimes being committed by Gbagbo forces, as well as by Ouattara's supporters, the international community is faced with a dilemna: if it turns out that Ouattara is indeed condoning such actions, how can he be supported by the world community, if it is to be consistent with calls for removal of other leaders who have alledgedly been involved in such situations, such as Khadafi in Libya? The result of such consistency would however be a political vaccum that might create more chaos in the country.

Beyond this political dimension, the situation raises interesting issues of Shared Responsibility. Berenice Boutin, from the University of Amsterdam, has considered the Shared Responsibility of France and the UN in Ivory Coast. One issue that needs to be considered in addition to that is the question of the responsibility for the crimes being committed on the ground, by both sides, which is even more complex.

Indeed, this is a case of Shared Responsibility which involves several types of entities, several levels of responsibility and types of obligations from various areas of law.

The first level is obviously the individual responsibility of those committing the crimes, which would arguably fall under several categories of International Criminal Law (ICL), whether under the war crimes of the crimes against humanity label. Still within ICL is the command responsibility of the military, but also civil, leaders. 

The second level requires looking at the entities to whom those crimes can be attributed. Interestingly, because Ouattara has been recognised by the entire international community as the legitimate representative of Ivory Coast, you can argue that the State Responsibility of Ivory Coast could be invoked. Also, and to make things even more interesting, it appears that mercenaries from other countries, more particularly Liberia, are involved. Depending on the facts, this could give rise to either direct responsibility of Liberia, should it be wilfully supporting the mercenaries, or, alternatively, failure to exercise due diligence, at least over its own territory and borders, if it could have prevented such a situation.

The third level is that of the responsibility of external entities, more particularly France and the UN, not only for their actions as considered by Bérénice, but also for actions by the parties to the conflict. The first angle that one could adopt, is their failure to exercise its responsibility to protect, as an emerging, but strongly debated and contested, norm of international law. Should the actions fall under genocide (there is some evidence that specific tribes are being targetted), it could trigger the specific duty to prevent that was recognised (if haphazardly applied) by the ICJ in the Genocide Case (PDF) in relation to Serbia
The second possible angle is complicity. Indeed, this might seem a little far fetched, but to the extent that the international community has been positively supporting Ouattara, not only politically, but also militarily, by targetting exclusively Gbagbo forces, couldn't it be seen as an active participant in the conflict (I have argued elsewhere against the fiction of neutral external intervention), and therefore be help responsible if the party it supports commits crimes that were foreseeable? this certainly raises issues of knowledge and intent which, under their current definition in international might not cover such situations, but the question can at least be asked.


  1. Interesting post. I look forward to following Shares Project.

    I think, generally as well as in particular cases like Ivory Coast, there is also a level of collective responsibility of those 'bystanders' and individuals who participate indirectly or directly (but in a very minimal sense) in the perpetration of atrocities. Because international criminal law privileges individual guilt and individual responsibility, we often lose sight of the fundamentally collective nature of crimes. Crimes against humanity, war crimes, genocide etc. cannot occur in a social vacuum.

    The trouble is how to reckon with the collective nature of crimes - transitional justice mechanisms like Truth Commissions and local/informal justice mechanisms may be more apt than courts or tribunals in this instance but all have shortcomings and still often tend to treat individual guilt/responsibility as more important than collective responsibility.

  2. Thanks for your comments Mark. I couldn't agree more on both the collective nature of international crimes and the difficult institutional choices to make to address this.

    I attended an interesting conference in Amsterdam a few years back on System criminality in international law which touched upon these issues. There was a book published, which you probably know: