Professor Rachel López was interviewed about her scholarship concerning state accomplices to grave crimes in an episode of the GravityFM podcast.

The episode explores López’s work documenting that the duty to refrain (or D2R), which prohibits states from complicity in the grave crimes of other states.

López explained that international law stems from a variety of sources: treaties, custom, and general principles of law recognized by international courts, as well as interpretations of law that scholars have put forth. Drawing from these sources, López contends that under international law there is an existing duty of states to refrain from assisting states that are committing those wrongs.

In “The Duty to Refrain: A Theory of State Accomplice Liability for Grave Crimes,” published in Nebraska Law Review, and in a new article López is writing, she explores these themes in depth.

López said in the interview that when universally accepted principles are violated, such as the prohibitions on slavery, torture or genocide, the duty to refrain is heightened. López noted if it is illegal for states to commit these crimes on their own, then it is also illegal for them to help other states to perpetrate them. She also explained that state complicity in these crimes is common because wide-scale atrocities are difficult to advance without enlisting the support of other nations.

There is a growing tendency for countries to violate this principle, López observed.

In air strikes that have killed civilians in Yemen, countries such as Saudi Arabia are directly liable for the bloodshed, López said. Yet the U.S. and the United Kingdom are providing technical assistance and weapons used in the air strikes.

“I would argue that they are violating this principle, ” López said, adding that weapon manufacturers are profiting from sales to the Saudi-led coalition. “It’s well documented that the coalition is engaging in indiscriminate air strikes that have killed women and children.”

López also cited the situation in Syria, noting that Russia provides weapons the Assad regime has used against its own civilian population.

“Committing grave crimes, particularly mass atrocities, requires a lot of planning and broad coordination and pooling of resources that cross borders,” López said, explaining that this makes it critically important to articulate the duty to refrain. “States don’t want to have their boots on the ground. At the same time, if other states are willing to engage in those acts and it serves their geopolitical interests, they have an incentive to aid and abet those acts and commit grave crimes through another actor. That's what’s occurring across our globe today.”

While much existing scholarship has focused on the emerging responsibility to protect (or R2P), which is the responsibility of the international community to step in when states fail to protect their own civilians against atrocities, López sees tremendous potential value in advancing the duty to refrain as a complement to R2P.

“We often are so horrified by these atrocities that we feel this urgent need to do something. And states often use R2P to justify military intervention, even though it provides for a range of options,” López said. “D2R creates some space in that calculation. It allows states to consider if military action is going to help or cause more harm. It can encourage states to examine more critically if military action will curtail human rights violations before engaging in the use of force.”