How Can A State Be Held Accountable?

by Dr. Ruwantissa Abeyratne

( January 16, 2016, Montreal, Sri Lanka Guardian) In an earlier article in this journal I proposed that while 2015 could be considered the year of State responsibility, 2016 should follow inevitably as the year of State accountability. In this article I address the basic principles of State accountability.

First, a word on State responsibility. The United Nations General Assembly, in its Resolution 56/83 , adopted as its Annex the International Law Commission’s Responsibility of States for Internationally Wrongful Acts which recognizes that every internationally wrongful act of a State entails the international responsibility of that State and that there is an internationally wrongful act of a State when conduct consisting of an action or omission is attributable to the State under international law and constitutes a breach of an international obligation of the State.

Accountability is the natural progression of responsibility. However, holding States accountable for a breach of responsibility is a difficult task in the face of the dichotomy between State sovereignty and the perceived impotence of international law as a punitive mechanism. This reason has so far precluded State accountability from being accepted as jus cogens – which is Latin for a peremptory norm of international law. The word “accountability” has not been used often as has been the word “responsibility” for State actions . However, there is a distinct link between accountability and the prevention of States from shirking accountability that flows from responsibility. In UN General Assembly Resolution 64/10 of 2010 which dealt with the Report on the Gaza Conflict between Israel and Palestine, one Whereas clause stresses “the need to ensure accountability for all violations of international humanitarian law and international human rights law in order to prevent impunity, ensure justice, deter further violations and promote peace” and inter alia the Resolution calls upon the Government of Israel to take all appropriate steps, within a period of three months, to undertake investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact- Finding Mission, towards ensuring accountability and justice .

In the Reparation for Injuries Case of 1949 the International Court of Justice ascribed to the United Nations the same legal status of an international personality under international law as that of a State, and affirmed that the Organization had the legal right to seek reparation from a State for injuries caused to one of its staff members while on mission in that State.

In the Corfu Channel case (also of 1949) the view of the Court was that the legal possibility of imposing liability upon a State wherever an official could be linked to that State encourages a State to be more cautious of its responsibility in controlling those responsible for carrying out tasks for which the State could be ultimately held responsible. In the same context, the responsibility of placing mines was attributed to Albania in the Corfu Channel case since the court attributed to Albania the responsibility, since Albania was known to have knowledge of the placement of mines although it did not know who exactly carried out the act.

When, on 4 December 2001, Israeli military forces attacked Gaza International airport, destroyed air navigation facilities and bombarded runways and taxiways until the airport became unserviceable, the Palestinian Authority claimed that the destroyed airport and air navigation facilities were used for the transportation of civilian passengers, search and rescue operations in case of emergencies, transportation of rescue material, including medical equipment, medicines and survival kits for safeguarding human lives. When the dispute was brought before the Council of the International Civil aviation Organization (ICAO), it adopted a resolution strongly urging Israel to take the necessary measures to restore Gaza International Airport so as to allow its reopening as soon as possible, presumably under the notion that Israel was accountable and therefore had to make reparation to Palestine. Later, when the issue was addressed by The International Court of Justice, the Court concluded that Israel was accountable to individuals as well, who suffered injury or damage as a result of the Israeli attack

An interesting concept in State accountability is a relatively recent shift from the top-down approach of State accountability – where States brought actions against individuals or other legal persons – to the bottom-up approach where individuals could bring an action against a State seeking its accountability. In an interesting case where the responsibility of the United Nations was brought into question, it was held by the European Court of Human Rights (ECtHR) that “the United Nations Security Council [(SC)] had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force and that the applicant’s detention was not, therefore, attributable to the United Nations”, but the internment of the applicant was attributable to the United Kingdom as it was British troops that had committed the wrongful act in Iraq. The court ascribed responsibility to the United Kingdom. When there is involvement by both a State or States and an international Organization (comprised of member states) such as NATO, courts are inclined to ascribe joint and several liability to both . This approach to liability is based on the theory of authority and control where the forces perpetrating an act of military nature are under the control of both the international organization and the State concerned.

The right of individuals to hold States accountable for injuries or damage suffered is also supported by the International Law Commission. In Article 33 (2). of its Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), 2001, the Commission explicitly recognizes State accountability for actions detrimental to social interests. So has the United Nations Compensation Commission which was established in 1991 to go into claims of those who suffered from the Iraqi invasion of Kuwait. The claims that the Commission handled amounted to more than 2.6 million and compensation sought under these claims was about $352 billion. Similarly another Commission – the Eritrea-Ethiopia Claims Commission-which was established in 2000 to compensate entities and individuals who claimed that they had suffered from violations of international humanitarian law – addressed issues of State accountability and reparation. The Iran-US Claims Tribunal is another example where an individual successfully argued that Iran was liable for the acts of intimidation and harassment he suffered under the hands of Iranian citizens which prompted the former to leave Iran, which resulted in significant property loss . However, this decision lost its force when, in a subsequent case the Tribunal required evidence of directives of the Iranian authorities – the Revolutionary Guard- that caused such intimidation to individuals .

There is a paradigm shift from the interests of the State, which were considered paramount two decades ago, to the interests of the people. The supremacy of State sovereignty now lies in State responsibility and international cooperation aimed at ensuring the safety and security as well as the general welfare of the people, rather than State prerogative. As the then Secretary General of the UN Kofi Annan said in 1999: “State sovereignty, in its most basic sense, is being redefined – not least by the forces of globalization and international cooperation. States are now widely understood to be instruments at the services of their peoples and not vice versa”