There is clearly an obligation of accountability by states to their own citizens. There is also, however, a growing expectation — and often times obligation — of accountability by states to international institutions, organizations, actors, and the public. These obligations arise not only in foreign affairs and war-and-peace-related issues, or when there is a clear violation of another state’s rights, or in matters of human rights or laws of war, but also in numerous areas that were traditionally considered domestic ones. While this is not usually the focus when discussing core questions of secrecy and accountability, there are emerging international processes — which are quickly and at times chaotically developing — that are evolving to have bearing on this issue as well.
Quite counterintuitively, in the last twenty years, one can see a growing (albeit grudgingly and selectively at times) compliance by states with at least some of the expectations of international reporting or investigations. States are increasingly subjecting themselves (whether willingly or otherwise) to international reporting requirements, investigations, and monitoring. The reporting, monitoring and international investigation teams are in almost every area imaginable, including trade, finance, banking, government contracts, environment, human rights, intellectual property, health, education, transportation, democracy practice, law enforcement and judicial proceedings, military investigations, compliance with the laws of war, nuclear issues, methods and practices of combating money laundering and terrorism, combating corruption, and combating human trafficking. States yearly submit dozens of voluminous reports to UN bodies and other institutions under bilateral and multilateral treaty obligations — to the OECD, World Bank, IMF, regional trade groups, WTO, and FATF, just to name a few — as well as to other states, including in instances where there is no treaty or legal obligation to do so but there exist other interests in providing information.
In these processes states are increasingly finding themselves reporting, addressing and providing detailed information — sometimes what was before considered sensitive information — to international actors on issues that in the past have been considered purely domestic, or, in extreme cases, information relating to national security interests. Depending on the case the reporting may be subject to verification, and the report and investigation conclusions many times will be available online for all to see, including other international institutions, international dispute settlement mechanisms, and international courts. The reporting verification or investigation process in any of these areas may be complex, including hundreds of questions posed to states whether in written or oral form, the submission by states of reports of hundreds of pages in minute detail, verification by teams of international investigators, hearings, and more.
This new way of life in the age of globalization technology and interdependency does not come naturally to states. Often times it is difficult for governments to internally comprehend why a state should provide detailed information, which may be perceived as sensitive and which a state would prefer to keep internal, to international actors or investigators. However, we increasingly see policy shifts in states where such reporting, in varying degrees of detail, is becoming an integral part of participating in the changing globalized world. Beyond what may be other considerations, providing the detailed information frequently turns out to be a necessity in order to participate in international efforts to combat cross-border crime or terrorism, or to participate in the international trade regime, or because absent this reporting a state may find itself on “blacklists” resulting in possible sanctions which can affect its innermost interests. A state that declines to cooperate may find its economic interests in jeopardy, find its security interests jeopardized, be in violation of treaty obligations, or face foreign policy ramifications or international delegitimization, or even possibly expose its officials to foreign or international jurisdiction.
We can increasingly discern internal government processes being put into place to assist decisionmaking in addressing the reporting and investigating phenomenon. Government professionals in the different ministries are trained to write reports for international use, taking into account foreign policy and professional considerations, interagency organization and cooperation to address the many cross-ministerial issues, professional preparation for international investigation or verification teams, partnerships with private actors in addressing different issues, and more. A shift can also be seen, in certain circumstances, in the way sensitive information is treated. Where there is a significant conflict between two interests — one in keeping certain sensitive information classified and the other in sharing it or parts of it with certain international investigators to counter serious and damaging allegations or consequences — some compromises might be detected there as well.
As there is a rise in the expectation of accountability of states in the international arena, so states have found themselves having to find ways to balance between what might be their natural aversion to international information sharing and the growing expectation of international information sharing and accountability.
As an increasing amount of information on the different practices of states is made available on the internet, so grows the expectation for states to provide additional information in even more areas, and reporting and verification almost becomes the norm in some areas rather than the exception. This has its benefits, of course, not the least of which is helping to create freer societies, transparency and accountability, as well as ensuring states comply with international obligations, and enhancing the ability to create international norms and much-needed international cooperation to combat cross-border crimes and other plagues.
But this phenomenon also raises concerns. In an age where terrorists and criminals, including those planning cybercrime or cyberterrorism, are becoming increasingly sophisticated and dangerous, and information provided by states through different reporting and information sharing mechanisms, whether in pieces or as an aggregate, might be harmfully used or fall into the wrong hands, serious questions might be raised as to the security of the information provided. Also, a mechanism has not yet been found to ensure the integrity of the international investigation and conclusions process, which even when flawed still results in a report by international investigators that is available to all, with possible significant ramifications for the state on which the investigation focused.
As the number of areas in which a state is compelled to provide information and is subject to investigation grows, and as national security and other interests may be increasingly at play, more focus will have to be placed on processes and mechanisms. It is not yet ensured that any and all international verification teams and mechanisms conduct their work without any political influence or considerations, through a fair and honest process, with rules of procedure and codes of conduct that protect the integrity of the process and protect core values of professionalism, impartiality, and honesty, while also safeguarding the legitimate national security interests of states. In many of the cases there are no such standards yet, and some existing processes may be extremely problematic. Nor are there available mechanisms, in many of the cases, to adequately protect sensitive information.
It is unlikely that this phenomenon of accountability in the international sphere will go away, probably quite the opposite, and clearly there are many benefits to it. While states have to understand and face this phenomenon, and learn to navigate in this new arena, they should also work together to ensure that these mechanisms — whether created through treaties, groups of states or one state — are used only to achieve legitimate goals, and contain procedural and legal safeguards that minimize the possibility of abuses of the process and do not unwittingly play into the hands of harmful or ill-meaning actors. The absence of these safeguards may invite valid considerations against information sharing and international cooperation.
Return to the Briefing daily for new insights from Peter Berkowitz, Benjamin Wittes, Jack Goldsmith, Matthew Waxman, Jessica Stern, Tod Lindbergh, Ruth Wedgwood, Philip Bobbit, and Kenneth Andersonfocusing on intelligence gathering in a digital age.
