Protecting rights in conflict situations and fragile states
Christine Chinkin, London School of Economics and Political Science
Andy Carl, Conciliation Resources
Frances Stewart, University of Oxford
1. The seventh meeting in the series was held on Monday 28 February 2005 at ODI and was chaired by Frances Stewart. The speakers were Christine Chinkin and Andy Carl.
2. The first speaker, Andy Carl opened by speaking about the challenges of protecting rights whilst promoting peace and the interface between human rights and conflict-resolution work.
3. He identified a number of roles involved in peacemaking / conflict prevention, including the roles of mediator, facilitator, expert resource people, and the multiple 'other' interveners. Conciliation Resources' (CR) work belonged to the latter category and supported people who were developing initiatives to address social, political and economic problems related to conflict, to promote dialogue and better practice and to influence governments.
4. Carl illustrated some of the dilemmas between human rights and conflict resolution by focusing on Northern Uganda, where there had been a conflict for around eighteen years and a large proportion of the population had been displaced. Attempts to bring about a peace between the government and the Lord's Resistance Army (LRA) were ongoing. The Uganda case raised all sorts of important questions, not least whether a political resolution was possible. One dilemma was that the parties to the negotiation were also part of the conflict system and there was no particular incentive for them to seek to engage with others to end it. When there was no 'hurting stalemate', could the parties be tempted with enough carrots and sticks to engage in the peace process?
5. The other question was whether a military solution was possible, and whether this should be viewed as political pragmatism or wishful thinking. There was an apparent convergence of views between the military (UPDF) and a number of governments and international NGOs that the best solution was to defeat the LRA militarily and politically. There were two dilemmas in this approach, however. The first was that many of the LRA's combatants were abducted child soldiers. The second, even if the strategy were successful, there were downsides to the so-called 'one bullet solution'. One only needed to look at what was happening in Angola to realise that this was not so much a solution as a lost opportunity for dialogue.
6. A third consideration was the peacemaking roles of civil (and uncivil) society. This included efforts to engage parties and their supporters in dialogue and call on them to respect human rights and humanitarian law, as well as to lobby for international intervention. Some were laying great emphasis - perhaps over-emphasis - on traditional Acholi notions of reconciliation and the Amnesty process in Uganda. In practice, many obstacles remained, especially for combatants returning to their communities.
7. Carl argued that calling for the intervention of the International Criminal Court (ICC) may have been an unfortunate first choice in Uganda. The ICC was being used as another way of defeating the LRA and, in this sense, the intervention becomes an instrument of war. The question was not just one of impunity but also one of timing, as it served as a huge disincentive to the LRA to sign up to a ceasefire. The ICC process could be deferred but not suspended. What options remained for the LRA then in the event of peace? They were looking for countries which were not signatories to the ICC for refuge. This was a serious clash between human rights and a more conflict-sensitive approach.
8. Carl proposed that what was needed was a principle of 'non-subordination' which required improved understanding between humanitarian, human rights and conflict-resolution approaches such that they could be pursued in a mutually non-compromising way. It required more dialogue, coordination and coherence between all interveners in a conflict situation.
9. He noted that one of the key challenges for peacemaking in Uganda was how to engage armed groups in the peace process. This required understanding them and their choices and constraints, including their limitations in terms of capacity to engage and the need to get beyond the blunt instruments of inducements and conditionalities - beyond sticks and carrots - to developing the capacities required to move the peace process forward.
10. Another central issue of the relationship between human rights and conflict was transitional justice. In Sierra Leone, none of the initiatives had been comprehensive. A Special (criminal) Court had been established with a witness protection scheme offering certain privileges in a context where there had been no reparations for human rights abuses. The Truth and Reconciliation Commission had produced a large report in October which had been promptly withdrawn before the people of Sierra Leone had a chance to see it and the process appeared to have sunk into disarray. Social and economic reintegration of ex-combatants was also clearly unfinished business. Whilst the process of dealing with the past had to being immediately, there was a need to distinguish between how a state and how a society undertook this. In Sierra Leone the international community had been quite sloppy about this distinction. No one could deal with the past for you, especially not an outsider.
11. CR's experience in Fiji had shown that the roles of convenor of peace processes and human right advocate could not effectively be fulfilled simultaneously. Civil society had to choose but inclusive processes of dialogue and problem solving did not happen without facilitation. In such circumstances, civil society needed resources for both sides. Fiji was an interesting process of framing a conflict resolution process within the rule of law and trying to strengthen rather than challenge it, but there were questions about whether injustice might be promoted within the system if this was not accompanied by political change. The international human rights system needed to have stronger mechanisms for a more demand-led approach. What support could be given to civil society when there is a constitutional coup?
12. Carl concluded that the principle of non-subordination needed to be developed and followed through more effectively. This was also true for the value of complementarity between peace-building and human rights. A second key point was that the important case for engaging with armed groups was not made easier by banning them or branding them as terrorist groups. Finally, local participation and ownership was of paramount importance in all these initiatives.
13. The second speaker, Christine Chinkin spoke about the role of human rights instruments in the post-conflict reconstruction stage, particularly in terms of the state's legal obligations. There were a number of preliminary difficulties, not least the fact that the categorisation of contexts as conflict or pre-/post-conflict was a distortion of reality. The law itself was not always certain, there were many grey and conflicting areas within it. There was also more than one regime of law applicable in post-conflict situations: International Humanitarian Law, refugee law, principles for internally displaced persons and the laws governing the responsibilities of occupying powers, in addition to human rights obligations.
14. Nonetheless, human rights had been given an enormously high profile as part of the actual peace settlement in contexts such as the former Yugoslavia and East Timor. This was especially so where international facilitators and mediators were involved. The mantra of the international community was: rule of law, human rights and democracy. This was all part of a particular vision of reconstruction in accordance with free market principles to provide a stable environment for foreign investment.
15. In the case of the Dayton Accord, a huge number of human rights treaties were annexed to the peace agreement and introduced as part and parcel of the constitution of the highly fragile state of Bosnia Herzegovina. The European Convention on Human Rights was given supreme status in the constitution. This huge formal commitment was imposed from the international level on the national and civil society levels. Other peace agreements, from Guatemala to El Salvador to Bougainville, all included references to human rights obligations. In East Timor in 1999, and in Kosovo, the transitional administration had the priority requirement of establishing independent human rights institution.
16. Chinkin suggested that what was important to recognise here was that human rights were not just about transitional justice and redress for previous violations during conflict, but also about the basis for the reconstituted state. At the formal level, at least, there was the notion that we had a moment which should be seized for the purpose of entrenching human rights within the future structures. The second point was that post-conflict was the moment of extraordinary international intervention into the affairs of that country - based on the idea of a pivotal moment of opportunity for change. Peace-keepers, NGOs and monitors were all present in large numbers. But whose responsibility were human rights at this time? Clearly, the government was bound by the international obligations of any previous government and also any new obligations it signed up to. Did the mass of international bodies also carry human rights obligations?
17. She also highlighted issues about international organisations not giving priority to human rights obligations and creating the impression that rights could be displaced by other imperatives. Capacity building and training of the police and the institutions of basic law and order were central to the success of the peace-process, yet the obligation on them to adhere to human rights standards was not held to be absolute either by those institutions or by the international community. Charges of sexual abuse by international peace-keeping forces, as well as the increased incidence in human trafficking in post-conflict settings, also served to undermine the capacity of the international community to press human rights concerns. The lack of accountability - and redress - for the internationals was doubly damaging when they tried to claim that there should be accountability through the International Criminal Court or other legal frameworks for violations committed during the conflict. The whole issue of the relationship between international organisations and the local population was also central: imposing standards without building up from the grass roots was dubious at best.
18. The human rights obligations of the government in the post-conflict state came along with issues of transitional governance and constitution drafting. Derogations from rights to which the state was a treaty party were not permitted under international law except in particular circumstances, such as a publicly declared emergency threatening the life of the nation. Any such derogations had to be proportionate to the exigencies of the situation. States did not, of course, announce an emergency during a post-conflict moment and states had been highly inconsistent in their fulfilment of the related reporting requirements to the Human Rights Committee (link to HRC: http://www.unhchr.ch/html/menu2/6/hrc.htm). Rwanda, for example, had not reported since it was due to do so in 1995.
19. Chinkin argued that, whilst international policy in relation to 'post-conflict' included an enormous emphasis on human rights, in reality this tended to mean civil and political rights and strategies such as election building, at the expense of economic and social rights which might be the most pressing concern in such situations. These rights were subject to the availability of resources and the requirement of progressive realisation, so were often neglected. There had been a General Comment from the Committee on Economic, Social and Cultural Rights: (http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument) that there was a minimum core obligation applicable at all times, which required states to provide minimum basic requirements in food, shelter and housing, etc. It also said that certain economic and social rights were immediate and could not be delayed under the idea of progressive realisation, regardless of available resources. The principle of non-discrimination, in any case, had to be observed in terms of access to whatever provision was being made. Under the Covenant on Economic, Social and Cultural Rights, the state was also required not to deprive people of their own strategies to gain access to basic goods under these categories of rights. This was particularly important in relation to women, especially given the increased number of female-headed households following conflict. Any formal process which threatened their self-help strategies might be considered a violation of their economic and social rights.
20. The discussion focused on the ideas of non-subordination and non-derogation of rights, and the question of complementarity between human rights and peace-building. The question of who was making the trade offs, where such existed, and the importance of participation and local ownership in this regard was highlighted. This was particularly relevant in terms of access to human rights instruments and strategies at the international level. The choice of which rights to enforce tended to be made by the international community so were not locally owned, nor necessarily the most appropriate.
21. The potential for rights-based approaches to lead to greater levels of risk, and the need for agencies to consider these risks in developing their strategies, particularly in relation to their impact on conflict dynamics, was also noted. Other issues included the role and capacity of regional courts and initiatives; the role of the private sector in security and the lack of accountability mechanisms for private (particularly transnational) actors; and questions of how to respond to traditional justice systems and local dispute resolution objectives.
Violent conflicts and fragile states pose a number of challenges for the realisation of human rights. Can a rights-based approach play a positive role in conflict prevention or does it exacerbate tensions? In post-conflict or fragile states situations, should donors and the human rights community insist on standards being met, or are there approaches to help manage the process by making it clear which rights are to be prioritised in such circumstances? When it is permissible for such states to derogate from core human rights obligations?