Complicity in Business and Human Rights

These remarks, delivered on April 9, 2015 at the American Society of International Law’s Annual Conference, address the context of complicity discussions in public international law generally then their significance and scope in Business and Human Rights in particular. The Panel on which I delivered this talk was one of the first to discuss the topic of complicity across different fields, including International Criminal Law, the Alien Tort Statute, Business and Human Rights and the Public International Law of State Responsibility. In my comments, I offer five initial points contextualizing these discussions for the field of public international law writ large, then five more about their significance for Business and Human Rights as a discourse. In the first part I suggest that a robust discussion about complicity is vital if we are to lead decent ethical lives in a world that is at once increasingly interconnected and very dysfunctional. In the second, I problematize the use of international criminal law to supply the standards for complicity Business and Human Rights should employ. I suggest that negligence, not normally sufficient for criminal responsibility, should ground the standard for accomplice liability in the human rights context. Overall, I posit the idea of a tiered wall of complicity standards that are attuned to the conceptual pre-commitments of the fields they operate in, not a monolithic system that takes international criminal law as the sole determinant of the concept. Nevertheless, even if a coherent system of complicity along these lines never emerges across international law as a whole, the mere fact that we are discussing the topic improves our chances of leading ethically decent lives in our very imperfect world