2016 – The Significance of State Accountability

2016 would be an appropriate year to rediscover past measures taken to adopt a novel approach to accountability from an international perspective.

by Dr. Ruwantissa Abeyratne

( January 1, 2016, Montreal, Sri Lanka Guardian) 2015 was the year of responsibility, where the international community – which comprises not only States but also agencies and organizations – got together and pronounced on each other’s responsibility towards safety, security and sustainable development in the world.  A good example is the paradox of The Conference of the Parties (COP 21) to the United Nations Framework Convention on Climate Change (UNFCC) which met in Paris in November-December 2015.  COP 21 declared on the one hand  that it is vital that the world’s temperatures do not exceed 1.5 degrees Celsius over pre-industrial levels, while on the other got nowhere toward a mechanism that would prevent such a rise.  There was no discussion on who was accountable for what in attaining this goal and what measures could be taken to hold miscreants accountable who polluted in excess.

At the World Economic Forum 2015 held earlier in Davos, Switzerland – a precursor to COP 21 in the climate change context – similar statements were made to the effect that there was an integral relationship between   climate change and development.  The Davos conference made the statement that: “unless we are able to address climate change in a timely manner, all development gains will be under constant economic and social threat due to the increasing frequency and intensity of natural disasters that can easily wipe out extended areas of living space, infrastructure and crop lands. From the climate change perspective, this type of vulnerability is in part recognized as the urgent need for resilience. Greenhouse gas mitigation policies and technologies can therefore be seen as the necessary “gateway” to development that is sustainable in the long run”.  This was a mere statement of responsibility: no call was made for the development of an accountability mechanism.

The principle of State responsibility is an entrenched concept at customary international law.  There were many instances where this principle emerged in 2015: from the claim of the United States that China cannot invoke its State sovereignty over man made islands in international waters; to Russia’s claim that Turkey was responsible for the shooting down of the former’s fighter aircraft.  Arguably, the most compelling example of responsibility without accountability was the acknowledgment of Germany of its responsibility to take in nearly a million refugees – mostly from Syria and Afghanistan – based on Article 1 of the German Constitution which ensures that the dignity of the human is untouchable and sacrosanct.  However, Germany, or any other country for that matter, did not take concrete action with the rest of the international community on the accountability of those responsible for the plight of the refugees.

With stronger reason, Lebanon, Turkey and Jordan have taken millions of refugees, based on their moral responsibility, but the world has not come together to identify and implement the responsibility of those responsible through concrete punitive measures of accountability.

 It is hoped that in 2016 the international community will graduate from pronouncements of responsibility to the need to enforce accountability. The first step would be to understand the difference between responsibility on the one hand and accountability on the other.  Is accountability broader and more stringent than responsibility?    The inherent dilemma posed by these two terms is that, often they are used interchangeably by even the most erudite.  A common definition of the word “responsibility” is that it is the state or fact of having a duty to deal with something or of having control over someone.  The Meriam-Webster dictionary defines “accountability” as the obligation or willingness to accept responsibility or to account for one’s responsibility for actions. Lisa Yarwood, in her doctoral thesis which was later published by Routeledge under the title “State Accountability Under International Law” states: “Thus, accountability does not merely seek to identify the responsible party; accountability seeks to make the responsible party account for its actions.  Accountability will ensure the discharge of responsibility, while the reverse does not necessarily apply.

The above definitions notwithstanding, the enforceability of State responsibility – although a necessary international measure – has to be addressed carefully, particularly in the realm of humanitarian law in the context of terrorism.  The shooting down of Malaysian airlines Flight MH 17 in July 2014 over Ukraine by unknown elements brings this danger into focus.  One of the greatest dilemmas faced by the modern State is to determine the way in which it could distance itself from terrorist activity that is perceived to be condoned or even supported by the State. The terrorist of today is highly sophisticated in the art of confusing the public and the international community, which often results in fingers being pointed at a sovereign State in terms of responsibility for private acts of terrorism.  It therefore becomes necessary to inquire into the principles that identify liability in this area with a view to determining true reprehensibility of perpetrators who often make themselves indistinguishable from both the government and the civilian population within  which they function.

2016 would be an appropriate year to rediscover past measures taken to adopt a novel approach to accountability from an international perspective.  One could pick, quite arbitrarily, what has happened in the past year  – from the Charlie Hebdo attacks in early 2015 to the November 2015 terrorist attacks in Paris, which saw 130 people losing their lives to terrorism – to trans-border pollution where the burning of forests in Indonesia affects the health of those living in Singapore – to the Condonation Theory of international law on State responsibility.  The theory was based on the fact that it is not illogical or arbitrary to suggest that a State must be held liable for its failure to take appropriate steps to punish persons who cause injury or harm to others,  for the reason that  such States can be considered guilty of condoning the criminal acts and therefore become responsible for them . Another reason attributed by scholars in support of the theory is that during that time, arbitral tribunals were ordering States to award pecuniary damages to claimants harmed by private offenders, on the basis that the States were being considered responsible for the offences.

The responsibility of governments in acting against offences committed by private individuals may sometimes involve condonation or ineptitude in taking effective action against terrorist acts, in particular with regard to the financing of terrorist acts.  An appropriate example of treaty making in State responsibility was seen on 9 December 1999, where States under the auspices the United Nations adopted the International Convention for the Suppression of the Financing of Terrorism, aimed at enhancing international co-operation among States in devising and adopting effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators.

The Convention, in its Article 2 recognizes that any person who by any means directly or indirectly, unlawfully or willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out any act which constitutes an offence under certain named treaties, commits an offence.  One of the treaties cited by the Convention is the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.

The Convention for the Suppression of the Financing of Terrorism also provides that, over and above the acts mentioned, providing or collecting funds toward any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in the situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act, would be deemed an offence under the Convention.

Accountability means something more than answerability.  It means the removal of impunity of States who seek protection immunity for their reprehensible acts – under the guise of State sovereignty –  and of leaders, whether they plunder the wealth of the people or tacitly acquiesce in the spread of terror in their States.