Jurisdiction in Complicity Cases: Rendition and Refoulement in Domestic and International Courts

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A norm prohibiting the complicity of one state in the internationally wrongful conduct of another state is a recognized part of customary international law. Various formulations of the norm prohibiting state complicity in internationally wrongful acts also appear in international treaties. As a general matter, in order for a complicit state to be found legally responsible for its aid or support of internationally wrongful actions undertaken by another state, it must be sufficiently clear that the supported state has in fact violated international law. Courts may decline to make a determination regarding the complicity of the supporting state when doing so would first require consideration of the conduct of the state receiving the complicit state’s support, over which the court may lack jurisdiction. This Note will explore the circumstances in which courts have upheld or declined jurisdiction over complicity claims, relying on recent international and domestic cases that arose in the context of the U.S. extraordinary rendition program. The author hopes to assist in the identification of situations in which an aggrieved person is more likely to have recourse to a judicial or quasi-judicial body to adjudicate his or her claims of human rights violations against a complicit state.

53 Colum. J. Transnat'l L. 701