The accountability of states in humanitarian response
by Caroline Ford October 2003

Debates about increasing accountability for humanitarian action – the ethics of what and how it is provided; who profits and who benefits – have focused on the accountability of NGOs to beneficiaries.  But other actors, states in particular, also merit scrutiny.

States play major roles in determining the provision and form of humanitarian assistance: as donors, direct providers, belligerents and coordinators; and as recipients on behalf of communities in need.  States also bear prime responsibility for the well-being of their people, and are the primary duty-holders for relieving suffering in times of catastrophe.  Are states currently responsible or accountable in any way for the quality and ethics of humanitarian action?  Part of the accountability debate requires an analysis of who holds responsibility for what – recognising that NGOs and states bear different responsibilities – and then who is held to account for discharging their responsibility.  Including assessments of state responsibility within the accountability debate can add and enrich our own analysis of accountability: during the next decade, mechanisms that exist under international law for state accountability could be tightened and expanded in order to further their use for accountability for humanitarian action.

Accountability requires an independent, external and impartial mechanism that imposes sanction and ensures compliance, whereas responsibility is self-regulating: actors assess their own compliance and make the necessary changes.  While state responsibility for humanitarian action under international law is clear, the external, independent mechanisms for holding states accountable are less well known to the humanitarian community.

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State responsibility

In the legal sense, state responsibility has its basis in the notion of sovereignty, and is invoked under international law in many circumstances. Sovereignty means that all states have supreme control over their internal affairs, and no state or international organisation may intervene in matters that fall within the domestic jurisdiction of another state.  States as such are responsible for the overall well-being and protection of all people on their territory; the specifics of what is covered by well-being or protection are contained in the various human rights treaties and covenants, for example the International Covenant on Economic, Social and Cultural Rights and the Convention Relating to the Status of Refugees.

Attempts by outsiders to hold states accountable for how they treat their nationals have been fraught with legal difficulty owing to the primacy of the notion of sovereignty and domestic jurisdiction. However, the increasing attention to human rights issues has made it easier to examine a state’s responsibility to protect people in other states.  In 2000, a Commission of International Experts was set up to examine what, if any, legal and moral responsibility states held to protect civilians from armed aggression or humanitarian catastrophe, both within their own territories and, significantly, in other states.  The resulting research, contained in the Responsibility to Protect documents, acknowledges that strict adherence to the notion of state sovereignty in times of humanitarian catastrophe is decreasing in legal and political validity.  The Committee argues strongly that attention should be given to examining the responsibility states have for preventing and responding to human rights and humanitarian emergencies in other states.

What are states’ legal responsibilities in times of humanitarian catastrophe?  One obvious responsibility is with respect to the conduct of one’s armed forces in peacekeeping operations and combat.  States are obliged to ensure that their forces avoid grave breaches of the Geneva Conventions: that they ensure the distinction between combatants and civilians in conflict, treat those who are hors de combat (prisoners of war, medical staff, injured soldiers, civilians) with dignity, respect and in a humane manner, and punish individuals who violate these laws.  In peacekeeping operations, states are responsible for ensuring that each individual soldier deployed complies with the applicable elements of IHL.

States engaged in combat also have a responsibility to ensure that their armed forces avoid sieges (starvation of communities) and allow the safe passage of food and medical supplies during the conflict.  Some argue that this constitutes a de facto right of access for all NGOs, but the state’s responsibility to provide assistance is not unlimited: states are not obliged to allow anyone who wishes entry to deliver assistance. Nor is the state required to provide assistance itself; it can be argued that allowing others to provide relief is sufficient to fulfil its responsibility.

Under most domestic legislation, states are also responsible to their own people for the coordination of relief activities undertaken on their soil, and for the quality of humanitarian assistance delivered by external agencies.  States normally require NGOs to coordinate with relevant government departments or ministries, and NGOs are required to adhere to national law and standards, for instance building codes.  Additionally, states could fulfil this responsibility by requiring CVs or copies of professional qualifications to be registered with relevant ministries, or by reviewing the project proposals of NGOs wishing to operate within their territory.  While as yet untested, it is possible that a state could be held accountable through its national courts for misconduct or malpractice by an international NGO delivering assistance on behalf of the state, or with the assistance of government structures.

It can also be argued that state responsibility is engaged by donors to recipient states for the quality of humanitarian assistance they support This responsibility could be fulfilled by ensuring that donor-supported projects conform to international standards or professional codes.  Furthermore, states are responsible for the actions of private companies or corporations operating on their soil or registered within their territory. Any ‘privatisation’ of humanitarian action, for instance if a donor or recipient state contracted a company to deliver food or provide logistical support, would engage state responsibility for the actions of that company.

It is not new that states are responsible for their actions which have an impact on, or are directly involved in, the delivery of humanitarian assistance.  However, the establishment of accountability mechanisms which are external, independent and have the power to censure or sanction improper or illegal behaviour by states is a relatively recent phenomenon.  While it may seem at first sight that there are few opportunities for holding states accountable, there are in fact some which humanitarian agencies can and should familiarise themselves with.  Interest in such mechanisms continues to increase, and there is much scope both to demand further accountability, and to fully exploit the mechanisms that already exist.

Holding states to account

Two such mechanisms are human rights treaty bodies, and international tribunals.

Human rights treaties

With the increasing interest in linking human rights to humanitarian assistance, these mechanisms merit examination for their potential to hold states accountable for their actions in humanitarian emergencies.

Each human rights treaty has a formal mechanism whereby a Committee is formed to review states’ compliance with their obligations.  Committee hearings have been criticised as not being tough enough on states which are known to be violators of human rights. However, these hearings are open to outsiders, and many states take comments made by the Committee very seriously.  When local NGOs presented an alternative report to the Committee on Economic, Social and Cultural Rights on poverty and the state’s lack of protection for the poor in Canada, the Committee took note.  These NGOs alleged that widespread poverty, hunger and homelessness, together with massive cuts to social programmes, violated commitments Canada had made.  The Committee publicly criticised the Canadian government harshly in 1993 and again in 1998, largely based on information presented by the NGO community, for its lack of action and its omission of these issues in its official report. As a result, Canada re-examined some of its policies.

While these Committees do not have the power to censure states or force remedial action, NGOs and civil society could use their public comments and recommendations when attempting to hold states accountable for their actions.  The humanitarian community could present to these Committee hearings facts and findings on a state’s inappropriate or absent response to a humanitarian crisis.  The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, together with the Children’s Rights Convention, the Convention against Torture and regional human rights treaties, all have hearings at which NGOs may make presentations concerning state action.  These presentations might be with regard to human rights protection in humanitarian contexts, or observing humanitarian standards as a realisation of human rights.

Tribunals

The ad hoc international tribunals set up following the conflicts in the former Yugoslavia, Rwanda, Sierra Leone and Cambodia offer another opportunity to hold states and their officials accountable for their actions.  These tribunals were established by the UN Security Council under Chapter VI of the UN Charter – making it mandatory under international law for UN member states to cooperate fully.  This cooperation includes the obligation to arrest and transfer an accused individual found on a state’s territory; facilitate the travel of witnesses; and provide access to documentary and other evidentiary materials.

The successes and failures of the international tribunals for the former Yugoslavia and Rwanda are well known. However, the new courts for Sierra Leone and Cambodia offer a potential means for holding state officials accountable for actions causing humanitarian suffering, attacks on aid workers and withholding relief.  In Sierra Leone, the Special Court is a ‘mixed’ tribunal with both international and domestic elements, thus combining national and international accountability measures. The court is designed to function for three years, and has the power to prosecute those ‘who bear the greatest responsibility’ for serious violations of international humanitarian law, and certain violations of Sierra Leone law committed in Sierra Leone since 30 November 1996.  The court, which is expected to try 20 people, issued its first seven indictments in March 2003.  Five individuals are currently in custody. The crimes alleged in the indictments include murder, rape, extermination, acts of terror, enslavement, looting and burning, sexual slavery, the conscription of children into an armed force, and attacks on UN peacekeepers and humanitarian assistance workers.

On 6 June 2003, the UN and Cambodia signed an agreement which paves the way for a genocide tribunal to try former leaders of the Khmer Rouge. The plan, agreed in draft form in March, allows that the majority of the judges are Cambodian, but requires at least one foreign judge to support a tribunal ruling.  As many of the deaths under the Khmer Rouge regime were caused by starvation, the court’s potential ability to examine accountability issues around withholding assistance to enable communities to survive could prove extremely valuable.

The International Criminal Court

The largest step towards an independent body for holding state officials (and other individuals) accountable for their actions is the International Criminal Court (ICC).  The ICC’s jurisdiction commenced on 1 July 2002, and by May 2003 90 countries had ratified the treaty establishing it. In the first half of 2003, the ICC’s chief prosecutor and its first 18 judges were elected (including seven women and representing all the regions of the world). The court is poised to commence business.

While US opposition is well known, the ICC does nonetheless offer an unprecedented opportunity to hold to account those responsible for international crimes – both as individuals and acting on behalf of the state.  The ICC is able to investigate and prosecute people accused of crimes against humanity, genocide and crimes of war. These crimes include violations of IHL. The court complements existing national judicial systems, and will step in only if national courts are unwilling or unable to investigate or prosecute such crimes. The ICC represents a potential way of holding to account states which, for example, fail to protect civilians or do not permit humanitarian relief in conflict.

Conclusion

As humanitarians search for ways and means to be more accountable to the communities they aim to serve, it is important not to forget state accountability.  States bear prime responsibility for the welfare of their people, and under international law have the prime duty to ensure that humanitarian action is timely, appropriate and of a high standard. States are also responsible for preventing many of the causes of humanitarian suffering, and should be held to account for their roles in the humanitarian response.  Some of the mechanisms that have been set up to deal with human rights violations and international crimes may be explored as means to encourage states to hold each other to account.  This is not to say that these mechanisms for state accountability are all fully functioning, or free from political interference.  What is relevant is that state responsibility is different from the responsibility of NGOs in humanitarian crises, and thus the accountability issues are logically also going to be different.  Finding meaningful ways to examine state accountability should improve and augment our own understanding of how humanitarian action should be accountable, and, most importantly, to whom.


Caroline Ford is Deputy Director for Africa for Amnesty International.


References and further reading

Steven R Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law (Oxford: Oxford University Press, 2001).

Law In Humanitarian Crises, 2 vols (Brussels: Office for Official Publications of the European Communities, 1995).

The Responsibility To Protect: Report on the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001).

Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (Oxford: Clarendon Press, 1995).

Ian Brownlie (ed.), Basic Documents on Human Rights (Oxford: Oxford University Press, 1992).

Adam Roberts and Richard Guelff (eds), Documents on the Laws of War (Oxford: Oxford University Press, 1995).

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