8th Annual Forum on Human Rights, Dublin, Ireland: Global Human Rights Protection - the way forward. Erika Feller, Assistant High Commissioner - Protection: Keynote address - "Towards a culture of protection"
24 June 2006
Minister, Archbishop, Your Excellencies, Ladies and Gentleman,
The Office of the High Commissioner for Refugees is a rights-based organization. Refugees and other persons of concern to us are by and large products of human rights abuses or human rights deficits and they lack a national authority able or willing to redress their situation. UNHCR was created to step in here, to galvanize or deliver protection on an international basis. Protection, simply defined, is a responsibility entailing restoration of the most basic of rights to the people - not least the right to life, to not suffer torture or discrimination, to respect for one's dignity and to the preservation of one's family. Protection is also about the creation of an enabling environment so that these and other rights have a reasonable chance of being enjoyed, pending a durable solution to the problems at issue.
UNHCR is also an integral member of the United Nations, which is in itself an institution whose charter and leadership commits all member states and organizations to foster and work to realize human rights globally. All this to say that we much appreciate this initiative of the Irish Government to provide an annual forum at which current issues on the global human rights agenda are able to be discussed with intelligence and reflection. This is a highly informed forum and one which I am sure will serve to stimulate a most valuable process of exchange of ideas and experience.
We are a rights organization, but a particular one, with clearly defined if expanding groups of persons within our competence, i.e. refugees, but also internally displaced persons, stateless people and the externally displaced who return to their homes in countries still fragile when national protection is not fully restored. These groups and their problems will be my point of reference today. I want also to locate my remarks within the framework of the current UN reform agenda, where it impacts directly on human rights enjoyment. On that agenda are proposals designed to strengthen human rights and the rule of the law, such as the creation of a Human Rights Council or the promotion of collective action to prevent the most egregious human rights violations, as well as to protect and assist IDPs. Also on the agenda, under the general heading of peace and collective security, are initiatives to create peace-building institutions and pursue peace building more energetically. These also have important human rights implications, as well as direct ramifications for UNHCR's activities.
I want to begin with what some have deemed a rather abstract notion which is gaining currency in the UN, that is the concept of the responsibility to protect. It is of course a notion being brought into play in relation to extreme situations and the current focus is on its "pre-emptive strike" character. I want to suggest that this is both a too blinkered approach to it and indeed one perhaps even calculated to spell its longer term downfall. Rather, it has other potential uses which, if the concept is developed to accommodate them, could indeed very positively contribute to the realization of better rights protection globally. Better protection is the way ahead for global human rights, at least from our perspective.
THE RESPONSIBILITY TO PROTECT
The origins of the concept of the responsibility to protect - R2P as some call it - lie in the debate of the 90's about the much disputed right of humanitarian intervention. At the time, the Security Council was willing, in some circumstances, to characterize major human rights abuses as a threat to international peace and security, thus opening up the possibility of enforcement action under Chapter 7 of the UN Charter. States were, though, deeply divided, concerned about issues of state sovereignty and the scope for abuse. This led to quite a gap between theory and practice, with tragic consequences of the dimensions of Srebrenica or the genocide in Rwanda. At the end of 2004, the report of the SG's High Level Panel on Threats, Challenges and Change set out proposals for a "more secure world". In it the Panel endorsed what it called "the emerging norm of a responsibility to protect civilians from large-scale violence". In his March 2005 report "In larger freedom", the SG went further in urging all to "embrace the responsibility to protect, and when necessary ... .. act on it". This found favour with the September 2005 World Summit which reviewed progress with implementation of the UN Millennium Goals. Endorsement of a responsibility to protect was actually one of the more positive results of the Summit which otherwise did not really live up to expectations.
What all this adds up to is an important shift from a "right of humanitarian intervention" to the potentially much broader "responsibility to protect". Key is that the notion does not rest on mandates, or indeed on international conventions. Rather it is supposed to come into play in response to needs. But when, for what purposes, at whose instigation??
In these deceptively simple questions lie a whole host of issues. For the moment, the UN is approaching them very cautiously, seeking, for now, to confine the notion to situations of genocide, war crimes, ethnic cleansing and crimes against humanity, as reflected most recently in Security Council Resolution 1674 on the Protection of Civilians in Armed Conflict. From the perspective of UNHCR, this is rather narrow. Why confine its use only to such situations flowing out of conflict? Protection problems and inability or unwillingness of a state to address them is not conflict-related only. Sexual and gender violence, abuse of children, vulnerability of the elderly, documentation and citizenship difficulties, or property loss - to randomly take some rights protection issues - are not restricted to persons in conflict situations who meet the conditions of international conventions or agency mandates. The protection situation may be equally acute for an earthquake victim in Pakistan, an internally displaced person in the Sudan, or a victim of trafficking in Eastern Europe. Arguably even, to limit the notion to egregious abuses and conflicts could be self-defeating, in that it brings back the spectre of humanitarian intervention, which now has such negative connotations. It is also too limiting when it comes to the protection options. At the softer end of the scale, there are a range of possibilities for extending protection, from humanitarian assistance, through to monitoring, technical assistance or capacity building. It is in these areas, rather than through imposing protection by force, that the notion is likely to gain its greatest credibility. To be more expansive with the concept might also lend credence to the position that any state which is unable, for whatever reason, to secure the most basic rights of persons on its territory has no less than an obligation to call on assistance in this regard and a right to receive it. The responsibility to protect, if developed appropriately, could be used to further this interpretation as well.
In summary, we do agree with human rights advocates, including the High Commissioner for Human Rights, Louise Arbour, that the responsibility to protect, if developed not only in words but deeds and with sufficient flexibility, offers a valuable framework for addressing prevailing human rights deficits. This would certainly enable UNHCR to open up more protection possibilities for persons of concern, particularly in areas where there are currently real gaps.
So where are the gaps? An obvious one has been protection of internally displaced persons.
There are an estimated 25 million internally displaced people globally. The total of 9.2 million refugees of concern to UNHCR is modest by comparison. Their access to effective protection has seriously suffered from the absence of an agreed international law framework and the fact that no one international organization has the mandate to intervene to protect their rights. The UN has recognized this as a major gap in the international protection system and efforts are underway to fill it. The 1998 Guiding Principles on Internal Displacement were a first step. While they are not in binding treaty form, they are nevertheless gaining currency as the normative reference point for IDP operations. This is not least due to their active promotion by the SG's Special Representative on IDPs, Walter Kalin, with whose office UNHCR is about to enter into a Memorandum of Understanding, to strengthen the institutional relationship on a number of fronts. This goes hand in hand with inter-agency efforts to improve collaboration in programmes for support and protection of IDPs. Within the emerging UN cooperative framework, UNHCR has accepted to be the coordinator of protection, camp management and emergency shelter activities.
This so-called "cluster approach" is a further step towards closing the IDP gap by ensuring that protecting the rights of the internally displaced becomes part of the mission, not a discretionary choice, of concerned agencies. However there is still a way to go. State sovereignty is an obstacle, particularly when it comes to protection. From the rights perspective, an important issue still to resolve is the width of the protection concept. The cluster approach is being piloted for IDP populations in several countries at the moment, including the Democratic Republic of the Congo. In the DRC, protection is a huge concern in effect for much of the entire population, displaced or not. Harassment by armed elements, sexual and gender violence, other threats to physical security, and absence of the rule of law, make distinctions between beneficiaries on the basis of displacement alone most artificial. The responsibility to protect would suggest that such distinctions should have no application where rights violations are no different for those displaced and those who stay at home. In practice, even if it is somewhat sui generis, this is what is happening in the affected areas of the DRC.
Amongst the various groups of non-citizens falling within a human rights deficit, stateless people figure prominently. The international human rights covenants, as the Human Rights Committee has recognized, stipulate that basic human rights are "not limited to citizens of States parties but must be available to all individuals, regardless of nationality or whether stateless ... who find themselves in the territory or subject to the jurisdiction of the State party". The reality is, though, very different from the theory. Statelessness is the "forgotten problem" as far as a responsibility to protect is concerned. The size of the problem is not mapped, there are relevant international treaties but only limited accession to them, and UNHCR's mandate for stateless people, albeit of long-standing, is still having to confront a climate of scepticism, born of the deep-seated belief that citizenship issues are the ultimate preserve of state sovereignty. For the millions of stateless people around the world, lack of an effective nationality means they confront countless obstacles in realising their basic rights. No nationality means identity documents conferring legal personality and the rights that go with this - access to health care, education, property rights, freedom to leave and return to your country - are simply not available. Births and deaths may not be registered. In many ways these people simply do not exist.
Whether the cause is dismemberment of empires, ethnic cleansing, discrimination, arbitrary deprivation of nationality, or simple conflict of laws, the result is that there are an estimated 9 to 11 million people of concern to UNHCR who are trapped in this legal and social rights void. The 1954 Convention on the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness have attracted only 57 and 30 State parties respectively. The Conventions alone are clearly not able to fill this protection gap. It would be a great advance from our perspective if the responsibility to protect could be interpreted as imposing a positive obligation on States to take steps, as envisaged in these instruments, to reduce statelessness, prevent its occurrence, and redress the dire circumstances of those whose rights their stateless condition strips from them.
As regards refugees, the gaps in protection are at least better understood and documented. They are not of the normative kind. There are many instruments, both refugee specific, such as the 1951 Refugee Convention, and more general, like the Convention on the Rights of the Child, which put in place the applicable norms and principles. Rather, the main gap today is one of implementation. This is an era - now of somewhat longstanding - of asylum fatigue, with access to asylum, and its provision on sufficiently generous terms, being no longer reliably guaranteed in many situations. The reasons are many. For the audience here today, I would just single out the problems attributable to the fact that refugee and asylum issues are now so deeply mired in broader concerns about international security, transnational crime and terrorism. Asylum seekers are repeatedly mischaracterized in the tabloid press, the public mind and the political debate, as criminals, possible terrorists or illegal migrants whose arrival is a border-and-crime-control issue, and whose protection needs are secondary.
How a problem is characterized is key to how it will be managed. To appreciate that asylum is a human rights issue creates protection space. To see it essentially as an illegal immigration issue carries the danger that rights may be abridged. UNHCR appreciates the need for sensitivity to the concerns of states about controlling entry and stay in their territories and the fact that the mixed character of many migratory movements, together with the growth in people smuggling and human trafficking both call for extra caution. UNHCR is not a migration agency and has no interest in compounding these difficulties by characterizing situations as a refugee problem, when they are not. I have recently visited the detention centres on the Canary Islands and can say with conviction that the boat people issue for Spain is at its heart one of irregular migration, with but a marginal asylum element at this point. I say this without, however, wanting to minimize the rights of the migrants, much less the humanitarian tragedies that play out on the high seas or the holiday beaches, almost on a daily basis here and other parts of the world. Migration management has to accommodate protection of rights and humanitarian needs, in tandem with national interest considerations.
As regards refugees, there are still a host of gaps. Most of them present for protection and assistance not in the context of mixed groups of arrivals in Europe, but rather in the developing world. Here more often than not they confront insecure and closed camp environments, with little freedom of movement, or precarious conditions of illegality in marginal communities in big towns. Programmes to assist them are under-funded, stay is likely to be protracted, solutions elusive, and overall rights protection sub-standard. The gaps in protection are many. UNHCR has been piloting, with EU money, a new approach to gaps identification on the ground, consensus-building around them and project delivery to address them, in specific targeted operations. We hope thereby to improve the quality of available protection and the accessibility of solutions closer to the point at which the need first arises. We would like to believe that, inherent in the responsibility to protect, is an obligation on the part of all states to work with and support all such initiatives to address the refugee rights protection gaps, wherever they manifest themselves.
RETURNEES AND OTHER AFFECTED CIVILIANS
There are also serious gaps in protection for persons returning from exile as refugees. These lie very much in the inadequate investment to ensure return is safe, viable and durable over the longer term. Commitment here has fallen victim to under-prioritization, lack of funding, and to mandate gaps between different concerned agencies. Refugees often return in less than ideal conditions, to situations of only partially resolved conflict and to places ill suited to, or not yet ready for, their reintegration. This leads me to move on from what has been advocacy on my part for treating the responsibility to protect in its broadest terms, and into other aspects of the protection of rights on the UN agenda, i.e. rights issues in countries in transition.
GOING BEYOND THE RESPONSIBILITY TO PROTECT - RIGHTS PROTECTION IN TRANSITION
Countries in transition between conflict and stability are faced with a multitude of challenges. This is a well known fact, but perhaps also an under-emphasized area when it comes to protection.
The end of a conflict does not mean the end of social, legal and economic discrimination and marginalization of groups; nor does it in any way mean rights protection challenges of a lesser order. Take Liberia for example. With the inauguration of the new government in January 2006, the demobilization of over 100,000 combatants, and the inauguration of Africa's first female President, stability and development have a real chance. However, the downside is that Liberia remains, in many ways, in a very critical state. The country witnessed mass displacement and the displaced are returning to counties or towns where there is virtually no functioning government, administration, police or judicial structures, where in some counties a good half of the magistrates even are illiterate, and there is an absence of basic services such as health, education or agricultural support. With rule of law a distant prospect only, impunity for crimes is rife and physical insecurity is high. Gender violence is widespread. In this country where the conflict is deemed to be over, nevertheless, the programmes of agencies such as UNHCR are ever as centrally focused on women and child protection, prevention of gender violence, rule of law and human rights monitoring activities, and land and property rights concerns.
Examples usually tell much more than words. Let me therefore look at another one of some actuality at the moment. In March 2002 East Timor was looking hopefully towards a bright new future as a soon-to-be independent new state. The return of some 194,000 persons from West Timor and beyond had proceeded peacefully. The receiving communities had demonstrated extraordinary receptiveness to the process of their reconciliation and reintegration, to the point where the then SRSG Sergio Vieira de Mello noted to me : "security broadly is not an issue, stability is not a problem and there is an absence of hatred".
My visit there showed me abundant evidence for a return to normalcy - bustling streets and markets, even in the worst hit areas like Suai, houses repaired or reconstructed, and nation-building well underway, with a Constitution being drafted and the Commission on Truth and Reconciliation ready to take up its responsibilities. However, the President-to-be Gusmão acknowledged it was still a "fragile" period. The development of a fully functioning judiciary was still some way off, with the administration of justice and lack of clarity over property rights and land issues being two areas with the potential to spark renewed conflict. Policing skills were also in very short supply. As one CIVPOL officer explained to me, the challenge was an enormous one of "conveying 25 years of policing skills to very young, not well educated and totally inexperienced people".
There were also citizenship issues to resolve, for example as regards the return of long term habitual residents having Indonesian nationality. Then there was still a rather gloomy economic outlook, with unemployment high and widespread and a new government not in a position to devote significant early attention and resources to redressing it. Economic problems also looked likely to be exacerbated by the pull out of the international community, which at the time was making the major contribution to the local economy. In addition, there was no satisfactory resolution of questions of some complexity, such as tax on goods coming back with returnees, or pension entitlements of the displaced.
This was 2002. Some four years later there is a renewed crisis. Just how fragile a new nation remains is starkly illustrated by the current crisis in East Timor, and the fact that a dispute within the armed forces over salary scales can trigger a crisis, with, of course, deeper roots, which has provoked some 78,000 people into new displacement outside the capital, Dili, as well as close to 69,000 people in addition displaced inside the city. There are camps again in the country, international troops and police, a major UN assistance effort, and for UNHCR, in addition a host of protection problems, in particular as regards the physical security and integrity of women and children.
This situation begs the question whether the fledgling state of East Timor was given sufficient time to stabilize before it was left to its own devices. Long term institutional development had not been completed when the international community pulled back. Basic services were not adequate. Below the leadership level, the country lacked enough trained and experienced people to fill essential jobs and run things on a daily basis. One serious underlying cause of the current crisis lies with the crucial security sector. Police services as well as the defense force were initially established on the basis of controversial recruitment from formerly opposing factions. Unresolved differences became the seed for political cleavages, both between and within these institutions, and ultimately outright conflict involving those responsible for ensuring stability. In search of lessons learned, one may ask whether the international community underestimated the need for support to longer-term institutional development in East Timor, not giving enough consideration to protection problems looming due to weaknesses in the government infrastructure and inexperience in important sectors.
Let us take a closer look at such protection considerations in another context. Here I will draw on some of the interesting lessons coming out of our programme in Afghanistan during the transition phase from conflict to greater stability. The country has received back millions of returnees from Pakistan, Iran and beyond, and their reintegration is the major challenge. This experience has made clear that transition programmes in many post-conflict countries tend to have an over-heavy focus on capacity building and awareness-raising. Both are important - but not as the alternative to, or at the expense of, direct intervention to address human rights violations of individuals or groups. The latter are key until local mechanisms are properly functioning. Another experience our Afghanistan operation brings out is that during transition it is important to accompany national level strategies for security, rule of law and development by strong outreach to regions and local communities. Where governance and security structures are left unattended in provinces and districts, particularly in countries where there are limited communications channels with the central authorities, security and law and order will remain dangerously incomplete. There is also a need to balance a focus on formal justice possibilities with those which exist of a more traditional type. Customary, traditional and community based mechanisms, coupled with the mandating or "responsibilizing" in this regard of community leaders, have a huge potential to resolve disputes within communities and need to be fostered, not left unattended, even while national structures are being build or re-established. Finally the significance of investing in the establishment or capacitating of independent, national human rights commissions has to be underlined. In our experience it is key to promote the early development of an independent, national capacity to monitor the human rights situation, to make accessible a complaints mechanism and to offer the possibility of effective remedies for individual complaints.
THE PEACEBUILDING AGENDA
Recovery of war torn communities is a long and fraught process and depends integrally on processes in place to restore civil, political, economic and social rights. And there is no hierarchy of rights here. This sounds evident but recognition on this score is also slow. Ensuring that rights protection is built into all peace processes, even before return, has to be a central objective for human rights promotion.
The direct link between return and restoration of the rights of displaced populations, and the consolidation of peace, is now being elaborated in the Security Council, which recently adopted a resolution on Protection of Civilians in Armed Conflict. That resolution recognizes the need to build into the peace process at an early stage, including into the peace talks and the peace agreements themselves, the conditions necessary to promote safe and dignified return of the displaced and guarantee their protection during the transition period. I want to mention several particular aspects of this resolution that we find important and which are relevant to today's discussion. The first is its acknowledgement that ending impunity is essential if a society is to come to terms with past abuses committed against civilians affected by armed conflict and to prevent such abuses in the future. In this regard, there are many possible justice and reconciliation mechanisms to explore, including national, international or mixed courts, or truth and reconciliation commissions. Issues of State and individual responsibility need to be addressed, in tandem with the rights of victims.
The resolution also recognizes the importance of UN missions accepting responsibility for the dissemination of information about humanitarian, human rights and refugee law. I will return to integrated missions in a moment. The resolution takes particular cognizance of the vulnerabilities of women and children to sexual and other forms of violence, including trafficking, in conflict and post-conflict situations, and it promotes activities to ensure zero tolerance. Women and children are of course all the more exposed because of their political disconnect, the disruption of their social networks and livelihood strategies, and often the absence of prior documentation now necessary to establish their civil status.
Such problems for women will be much ameliorated when humanitarian actors are enabled to participate meaningfully in the actual peace process, including through having input into peace agreements and the mandates of peacekeeping operations. A woman leader from Sri Lanka made the following very apt observation in this regard on the Sri Lanka peace process during a 2005 celebration of the Security Council Resolution 1325 on Women, Peace and Security [incidentally a resolution with much, still under-utilized potential]: "Only the parties responsible for war and its accompanying atrocities are negotiating the terms of peace, while those who have been lobbying for peace and campaigning against human rights violations over the past two decades find themselves marginalized in the peace process". One is tempted to link the current regrettable state of the peace process in her country at least in part to this comment ! Sudan is a current example of a situation where humanitarian actors have not been given sufficient voice in the peace process
Humanitarian actors are often kept outside the peace arrangements because of a mistaken preference to treat matters such as repatriation of refugees or IDPs as a logistics issue, rather than one of restoration of rights. The International Council of Human Rights, a Swiss-based human rights entity, has recently released a major research study on human rights and peace agreements, which makes a cogent argument for maintaining a place for human rights in these agreements. UNHCR shares the conclusion of the study that "human rights often make a positive contribution to conflict resolution. Human rights abuses are both a cause as well as a symptom of conflicts, and action to tackle them is often a vital component of policies to bring about peace.... Human rights are relevant at different phases of negotiation. Before negotiation begins, preliminary human rights frameworks can help to contain the conflict. During the negotiations, measures to protect human rights can build confidence and set baselines for institutional and legal reform. During the implementation, human rights monitoring can strengthen compliance with the agreement as a whole and, more generally, generate public confidence in it". At a minimum, UNHCR advocates that peace agreements lay the basis for addressing: unresolved justice and impunity questions, property issues, restitution and reparations, citizenship issues, voting rights, pensions and disputes resolution.
THE UN, INTEGRATED MISSIONS AND PEACE STRUCTURES
To recap, there is now general recognition that where peace processes ignore root causes, including issues relating to human rights, peace is seldom lasting. All peace missions deal, directly or indirectly, with human rights issues through mediating end to conflict, preserving peace, law and order, assisting in the development of national institutions, or addressing individual rights violations. This is not new. Human rights components have been institutionalized, in various ways, in peace missions for some time already. However the UN reform process, in particular with its emphasis on integrated missions, has opened up new prospects for greater synergies between agencies with protection mandates and the mandates of peace missions. In essence, the remit of integrated missions is to provide a dedicated, expert focus on human rights and ensure that all aspects of UN operations are carried out in furtherance of human rights dictates. In particular, the aims are to:
- Ensure that peace processes give due prominence to justice and equity;
- Encourage activities to prevent and redress violations of human rights;
- Foster capacity and institution building for better human rights protection; and,
- To mainstream human rights considerations into all aspects of UN peace operations.
The UN reform process has been the impetus for the putting in place of new structures, i.e. the Peace Building Commission and a Secretariat to support it. These are important advances. However peace building requires that priority be given to it across the board of UN structures. It needs to be squarely on the agendas of the humanitarian assistance agencies, built into the design and implementation of their operations at the earliest stage. It needs also to be programmed centrally into the work of the development agencies. Rights-focused entities like the new Human Rights Council must also, in our view, accord this responsibility, not least in the context of the mass displacement debate, a priority focus in its deliberations.
CONCLUSION - THE HUMAN RIGHTS COUNCIL
Today's Forum coincides with the first session of the new Human Rights Council. This body has the unenviable task of picking up the baton from its predecessor Commission, an entity whose contribution to the better realization of human rights globally had, over recent years, been increasingly discredited. Much effort and political prestige has been vested in creating the Council. It will be watched carefully for the new approaches it can pioneer in the areas of human rights advocacy and protection - from pledge-based membership to universal review techniques - and UNHCR, among other bodies, will be following developments actively. As a UN rights based organization, our interests can only be furthered by a Council where human rights law and humanitarian considerations are no longer crowded out by the politics of the human rights debate, which was slowly but surely strangling the Commission on Human Rights.
In an abbreviated presentation to the Human Rights Council this week, I expressed UNHCR's hope that the Council will now progressively evolve into a forum:
- where human rights violations are duly recognized as being, apart from natural disasters, one of the principal causes of forced displacement, whether it be across borders or within them; the Commission had great difficulty reaching this seemingly self evident acknowledgement;
- which, with this acknowledgement, accepts its responsibility to examine even-handedly specific situations which create refugees through denial of rights, but with the aim not only of condemning, but also of addressing the problems in constructive and solutions-oriented ways;
- where the close links between displacement, peace and security development and human rights are recognized and where peace building through human rights promotion, including for the displaced , is a priority focus.
- where the gaps in protection, as much as the violations, are the focus of reflection and advocacy on how to fill them, with approaches such as through universal periodic review introducing new ways for doing both; we will be following this in particular with great interest to see what are the lessons here for our management of our own international protection responsibilities;
- which keeps the rights and needs of individuals in the proper balance with state concerns, including about terrorism and illegal migration; this balance has tilted too much recently in our experience;
- which has zero tolerance of mischievous mischaracterization of people and their problems for populist or other reasons;
- where the rights of non-citizens are as much in focus as those of citizens, so that the Council, unlike its predecessor, sees the merit of concrete interventions on behalf in particular of stateless people;
- where the rule of law trumps arbitrary or discretionary approaches to rights protection, and where ways are found to actively encourage adherence to and full implementation of international instruments, including those that benefit refugees and stateless persons;
- where states are encouraged to see that to do the right thing makes good national common sense, in their own interests, so that, not least, pledges prove more than rhetoric and the responsibility to protect takes form and substance in ways which do not constrict but rather enhance its flexibility as a rights advocacy and protection tool;
This is our wish list for the Council, and indeed for the way forward for global human rights protection.