Human
Rights and Poverty Reduction Realities, controversies
and strategies
Seventh Meeting Report:
Monday 28 February 2005
Protecting
rights in conflict situations and fragile states
Speakers:Christine Chinkin (London School of Economics and Political
Science) and Andy Carl (Conciliation Resources). Chair: Frances Stewart (University of Oxford)
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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 (see
presentation), 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 (see
speakers notes), 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.
