Complicity and Compromise in the Law of Nations

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This paper considers the implications of Chiara Lepora and Robert Goodin's On Complicity and Compromise (OUP, 2013) for our understanding of international law. That volume systematizes and evaluates individuals’ ethical choices in getting (too) close to evil acts. For the law of nations, these concepts are relevant in three critical ways. First, they capture the dilemmas of those charged with implementing international law, e.g., Red Cross delegates pledged to confidentiality learning of torture in a prison. Second, they offer a rubric for understanding when a state may use coercion against certain actors, e.g., international law's rules for when one state may use force against another based on the latter's ties to terrorist acts. Third, they offer a moral grounding for many international obligations of states based on the need to avoid their own complicity in others' wrongs, e.g., by not expelling refugees to a state persecuting them or by preventing private actors from committing human rights abuses. In the case of the last two, the law reflects decisions by states about how much complicity they will tolerate – either complicity by others or complicity by the states themselves.

From the perspective of an international lawyer concerned with promoting the rule of law internationally, Lepora and Goodin's framework helps us appreciate the moral basis behind certain legal rules. To the extent we can see legal rules, international or domestic, as morally acceptable and just and not merely the product of power politics, we increase the prospects for compliance with them. A moral acceptable approach to complicity within the law can have more buy-in than a rule without such a moral grounding. Equally important, international law's approach to complicity helps our understanding of morality itself by marking some clear lines in the sand.