Summer School in Global Peace, Security and Strategic Studies
Brussels, 22 July 2019
Birgit Van Hout
Regional Representative for Europe
UN Human Rights Office (OHCHR)
I would like to thank the Global Governance Institute and the Belgian Royal Military Academy for having invited me to exchange views with you on the important topic of Human Rights in Global Peace and Security. In my first presentation, I will focus specifically on the protection of civilians, the responsibility to protect, and the role of prevention.
But before I go into these matters, I would like to address you personally. I would like to say that if I invest my time in you, it is because I expect a lot from you. Beyond the specific topics on our agenda, what I really would like to accomplish at the end of today's dialogue is to provoke a reflection in you on what you can do to advance human rights.
It fills me with hope that so many young people are standing up for the values of human rights and for the future of our planet. In first instance, I am thinking of the many young people around the world who are dedicating time and talent to volunteer service. They are unsung heroes. More in the spotlight are social mobilizations, which show that youth have not lost their faith in their ability to change things.
This challenges my generation and the existing institutions and organizations to rethink the way we do things. With this, I mean, on the one hand, how we can live up to young people’s expectations, and, how, on the other hand, we can capitalise on the energy and creativity of young people to advance human rights.
Leadership -- as I see it -- is not a position, junior or senior, but an attitude. You can all be leaders by acting with integrity, professionalism and respect for diversity. It pretty much works the same way with human rights: to be a human rights defender, you do not necessarily have to be employed professionally in the field of human rights. Everyone in this room can advance human rights. You can start by taking an interest and taking a stance.
The state of human rights in the world
The UN Human Rights Office (OHCHR) is mandated to protect and promote human rights in the world. Immense progress has been made since the adoption of the Universal Declaration of Human Rights.
There is no human rights index, as there is a human development index or an anti-corruption index, but it is important to know that no country on this planet is fully human rights compliant. All countries can make progress. And it is that difference between the standard as articulated in the core international human rights treaties and reality that we call the implementation gap. Undoubtedly, this gap between commitment and practice is our greatest challenge today.
That is where the UN Human Rights Office comes in with assessments, legal advice and technical assistance to help States live up to their legal obligations; to help right-holders claim their rights; and to support national human rights protection systems, such as the judiciary, national human rights institutions or equality bodies, so that one day our presence is no longer needed because national actors will have achieved the full realisation of human rights for all.
Sadly, we are facing on the one hand indifference and on the other hand resistance against human rights. This is an international phenomenon. Some take human rights for granted, even though we are far from achieving the goals and aspirations embodied in the Universal Declaration. Some actively work against human rights. Others question the relevance – or the universality - of human rights -- the rebirth of cultural relativism theories being one example of this.
In addition, certain gains are being rolled back. Our office is genuinely concerned about the shrinking space for civil society and the increasing demonization of human rights defenders. Again, this is a worldwide phenomenon. We are also witnessing resistance to women’s rights, framed in terms of protecting “culture” or “traditional values”.
I nevertheless remain optimistic because, on the one hand, human rights have never progressed along a linear curve. Ever since the term human rights was coined, there has been progress and setbacks. As our High Commissioner for Human Rights Michele Bachelet has said: "centuries of violence, inequality, discrimination and prejudice can be ended." Optimism can be realistic and the human rights agenda is in fact a practical plan of action that countries can embark on.
How do human rights relate to peace and security?
The UN Charter, signed on 26 June 1945 in San Francisco, is premised on three pillars: peace & security, development and human rights. Former Secretary-General Kofi Annan famously said "we will not enjoy security without development nor development without security, and we will not enjoy either without respect for human rights." Think about it: what this calls for is a re-definition of international security: one that recognises the centrality of human rights and justice to conflict prevention, mediation and peace-keeping.
Indeed, human rights violations - whether violations of civil rights, cultural rights, economic rights, political rights or social rights, are at the root of numerous conflicts. Peace agreements are unlikely to last long if they do not address the grievances that caused the conflict in the first place. This is also why efforts to establish transitional justice and the rule of law are crucial if we are to achieve non-regression and non-recurrence. And this is why justice services should be regarded as essential as food, vaccinations or shelter.
Needless to say that the international environment has changed tremendously since the UN was founded in 1945 and our world has become increasingly interconnected. Armed conflict is fuelled by arms and monetary transfers that often originate in the developed world. The destabilizing effects of conflict also spill over in the form of refugee flows, organized crime and terrorism. Conflict may also drive global food insecurity. Indeed, ten of the 13 major food crises in 2017 were conflict-driven.
The point I would like to make is that, in an interdependent world, the existence of war, fragile States, failing States or governments that can only maintain themselves by committing gross human rights violations, constitutes a risk to people everywhere.
Another development since 1945 is that increasingly the notion of security is recognized to include not only States, but also the people living within those States. We have seen how popular concern over mass atrocities can put pressure on governments around the world to respond. The increased mainstreaming of human rights - turn on the international news and 9 out of 10 topics are about non-respect for human rights - has also created, at least for democratic governments, a political cost for inaction and indifference.
In recent times, we are nevertheless witnessing increasing tension between the principle of State sovereignty, which is the cornerstone of international relations, and the responsibility to protect which is a relatively recent construct that arose from the ashes of Rwandan genocide and the Srebrenica massacre.
The principle of State sovereignty affirms the equal worth of all States, small or large, and their right to shape their own destiny. The norm of non-intervention in a country's internal affairs is enshrined in the UN Charter and a founding principle of the UN. Indeed, the UN was conceived primarily to maintain peace and security between States and not within States.
However, the International Committee of the Red Cross (ICRC) estimates that only one-third of conflicts today are between two belligerents. Almost half of the world's conflicts involve between three and nine parties, and 22 percent have more than ten belligerents, most of them non-State actors who are uninformed or unwilling to abide by international humanitarian and human rights law.
In addition, some of the belligerents may be considered terrorist organizations, like ISIL or Al-Qaida, which makes coordination with these groups for humanitarian assistance purposes particularly delicate.
The protection of civilians
In recent decades, we have witnessed the increased vulnerability and even targeting of civilians and humanitarian workers in conflict. In 2017, the UN recorded the death and injury of more than 26,000 civilians in just six countries: Afghanistan, the Central African Republic, the Democratic Republic of Congo, Iraq, Somalia and Yemen.
The conflict in Syria has created 6 million refugees, 5 million displaced, and 11.5 million people in need of humanitarian assistance. All parties to the conflict have failed to apply the principles of distinction and proportionality in their conduct of war.
I would like to share a few excerpts from the statement delivered by Paulo Sergio Pinheiro, Chair of the Independent International Commission of Inquiry on Syria, to the UN Human Rights Council earlier this month (2 July 2019): "In recent months, dozens of health facilities were either damaged or completely destroyed, depriving approximately 600,000 civilians from vitally needed medical care. Similarly, schools, markets and camps for internally displaced persons continue to be struck by both aerial and ground offensives. These attacks are regularly marked by the use of indiscriminate weapons such as forbidden munitions, including cluster bombs and incendiary weapons. The latter have destroyed hectares of crops and agricultural equipment, resulting in substantial harvest losses for an all to beleaguered population."
"Children in northwest Syria suffer under harsh economic conditions. As a consequence, forced labour, forced recruitment, and forced marriage ensue. We have witnessed in the Syrian Arab Republic the very fundamentals of international humanitarian and human rights law being ignored by many of the parties involved. We have reported on the starvation of civilians and deaths of children in sieges; the disappearance of tens of thousands; the prolonged incommunicado detention of suspected ISIL fighters, and the lack of humanitarian assistance to millions of displaced, leading to preventable deaths."
He concludes that "The civilian population remains the primary victim of the conflict, whose interests have been completely ignored. That this continues to be the case over seven years after the conflict began, is something for which responsibility must be shared."
So, how do we reconcile the principle of State sovereignty with the equally compelling mission to protect civilians?
I would like to argue that State sovereignty implies a dual responsibility: external - to respect the sovereignty of other States - and internal - to respect the dignity and rights of people living within the State. When rape is used as a weapon of war and when citizens are killed by their own security forces, then it is just insufficient to think of security in terms of national or territorial security alone. The principle of State sovereignty cannot be a pretext for impunity. At the end of the day, the UN Charter starts with the words "We, the People" and not "We, the States."
20 years ago, action was taken by the Security Council to place the subject of protection of civilians in armed conflict as a central theme on its agenda. Over the years, the Security Council has progressed from broadly condemning attacks against civilians to a more robust promotion of international humanitarian law (IHL) and international human rights law (IHRL), specifying the actors bound by these obligations, the types of attacks prohibited, and the persons and objects protected under the law.
Since 1999, most United Nations peace operations have been established with protection of civilians (POC) mandates; i.e. mandates which authorize all necessary means, including the use of force, to protect civilians under imminent threat of physical violence. You may recall that the Security Council authorized the NATO-led military intervention in Libya with the aim, inter alia, of protecting civilians.
The Security Council has also supported and established accountability mechanisms, such as the International Criminal Tribunal for the former Yugoslavia (1993) and Rwanda (1994) and referred to the International Criminal Court the situations in Darfur (2005) and Libya (2011). In addition, the Security Council has played a role in establishing the Special Court for Sierra Leone (2000) and the Special Tribunal for Lebanon (2007). We may wish to discuss during our dialogue to what degree you think that the international criminal tribunals have contributed to accountability and whether you believe that they have had a deterrent effect and prevented atrocities in other conflicts.
In recent years, however, the Security Council has increasingly shifted its focus from the activation of international justice mechanisms to the promotion of national and regional accountability mechanisms as well as localized transitional justice, capacity-building and stabilization efforts.
The Security Council’s approach has further evolved from merely promoting compliance with parties’ obligations under IHL to operationalization, e.g. by mandating peace operations to enforce the rapid and unimpeded passage of humanitarian relief to civilians in need. The Security Council has also adopted dedicated resolutions on the protection of UN and humanitarian personnel, medical care, and food security in armed conflict.
To enhance the protection of children in armed conflict, the Council has established protective tools, which includes the public listing of perpetrators of grave violations against children as well as a monitoring and reporting mechanism.
To better protect women and conflict-related sexual violence (CRSV), the Council has requested the establishment of an Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict to provide strategic leadership in combating CRSV, as well as a team of experts to assist in ensuring criminal accountability.
From conflict prevention and conflict resolution to reconciliation and economic recovery post-conflict, Security Council resolution 1325 calls for women's participation in peace processes. In fact, women’s meaningful participation in peace processes increases the likelihood that an agreement will last longer than 15 years by as much as 35 per cent. But women’s participation in peace processes goes beyond just representation and quotas. Meaningful participation means that women are at the table when negotiations are taking place, women’s interests and lived experiences are fully reflected in peace processes, and that women are equally considered in recovery efforts in the aftermath in conflict.
The Security Council has further used UN sanctions regimes as vehicles to protect civilians. We know that blanket economic sanctions are generally ineffective and cause hardship on the civilian population. Increasingly, however, smart sanctions are put in place, such as travel bans, the freezing of financial assets, or the suspension of States from regional organizations. Arms embargoes are also an important, yet underutilised tool.
The evolution of the Security Council's approach shows the gradual but certain prioritization of the protection of civilians in its work. A clear normative framework in now place. The challenge is how to translate this into concrete measures that actually end or mitigate the suffering of civilians in armed conflicts.
Paradoxically, while the normative framework has been strengthened, compliance has deteriorated. What we see is that, despite the broad agreement in the Security Council on the need to protect civilians as a matter of priority, divisions among Security Council members arise when it comes to specific conflicts. Political alliances with opposing belligerents, particularly among the five permanent members of the Security Council, have hindered its ability to play an effective role in protecting civilians in various conflicts around the world. The veto power held by the five permanent members has prevented the Security Council from taking more robust action from Palestine to South Sudan. From a human rights perspective, it is unconscionable that one veto can override the rest of humanity when atrocity crimes risk or are being committed.
Differences in perspectives have also surfaced with respect to the protection mandate of peace operations. Most recently, the integration of human rights components in peace and political missions has even been called into question.
This has led the Secretary-General to appeal to all governments to develop their own national policy frameworks to protect civilians in conflict; to support the UN to engage with non-State armed groups to develop codes of conduct and action plans to protect civilians, and to ensure accountability for atrocity crimes.
The responsibility to protect
The responsibility to protect people from genocide, war crimes, crimes against humanity and ethnic cleansing was established by the General Assembly in the 2005 World Summit Outcome Document.
In 2009, then Secretary-General Ban Ki-moon outlined a strategy based on three pillars:
- The State bears the primary responsibility to protect its own population
- The UN must assist States in fulfilling this obligation
- When a State manifestly fails to protect its population or is in fact the perpetrator of atrocity crimes, the international community has a responsibility to take collective action in a timely and decisive manner to prevent or halt the commission of these crimes.
Such action must be through the Security Council and in accordance with the UN Charter. Should peaceful means prove inadequate, then coercive measures, in accordance with the UN Charter, can be contemplated, including the use of force.
There is no better or more appropriate body than the UN Security Council to authorize military intervention to save lives. Because it represents all States, the UN carries a legitimacy that unilateral intervention lacks. Those who challenge the authority of the UN as the sole legitimate guardian of international peace and security run the risk of undermining the principle of a world order based on international law and universal norms.
Examples abound of conflicts where the responsibility to protect has failed, again often due to the inability of the Security Council to achieve consensus. But we all know that the bit five are not going to relinquish their veto power tomorrow. So a middle-of-the-road solution, advocated by France, could be for the permanent five members of the Security Council to adopt a voluntary code of conduct in which they agree not to use their veto power to obstruct the passage of what otherwise would be a majority resolution.
While there is certainly much disappointment over the inability of the UN to halt the bloodshed in several places, I would nevertheless like to point to bodies and countries that have, within their competence, stepped up to the plate: the Human Rights Council has passed over 20 resolutions on the responsibility to protect; it set up commissions of inquiry on Burundi, Syria and the 2018 Protests in the Occupied Palestinian Territories, a Fact-Finding Mission on Myanmar, a Group of Eminent Experts on Yemen and an Expert Team on the Kasai, to document serious violations of international humanitarian and human rights law, with a view to establishing accountability and combating impunity. The UN Human Rights Office provides expertise and support to these mechanisms.
In the case of Syria, I would also like to praise the neighboring countries, particularly Lebanon, Jordan and Turkey, who have welcomed millions of Syrian refugees in spite of their own economic and social challenges.
It is important to note that the World Summit Outcome Document does not sanction unilateral intervention or an intervention by a coalition of the willing. The responsibility to protect is also not to be confused with unilateral interventions for regime change or to bring or restore democracy which are not legitimate under the UN Charter.
The role of prevention
For various reasons, including political and budgetary, but also the resurgence of the national sovereignty argument, there is even less appetite for intervention to protect civilians than might have existed before. At some point, it even seemed that the entire construct of the responsibility to protect was in danger.
Let us not forget that the UN is an inter-governmental organization, and therefore operations must be based in political realism. But the organization is also the repository of international idealism and that sense is and must be fundamental to its identity.
The current UN Special Advisor on the Responsibility to Protect, Karen Smith (South Africa), has emphasized the importance of prevention, early warning and early action for the implementation of the responsibility to protect. She has particularly emphasized the indispensable role of the human rights mechanisms and the UN Human Rights Office, which, through its 76 field presences provides early indicators of deteriorating situations - the "canaries in the coalmine."
Preventive efforts can take make forms. They can be support for local initiatives that advance good governance. They can come as development assistance that addresses the cause of potential conflict. They can come in the form of national institutions protecting the rights of minorities. Or, they can come as good offices missions and mediation efforts to promote dialogue and reconciliation.
Greater investment in prevention is a key priority of UN Secretary-General Antonio Guterres, who has repeatedly said that advancing human rights is a critical prevention strategy. Regrettably, while there is much vocal support for human rights from member States, the UN Human Rights Office remains critically underfunded in comparison to the other two pillars - peace & security and development - receiving less than four percent of the regular budget (assessed contributions).
Indeed, the resources devoted today to prevention are dwarfed by the collective resources devoted to the preparation for war, war fighting, and post-intervention reconstruction. According to the Carnegie Commission on Preventing Deadly Conflict, the international community in the 1990s spent approximately $200 billion on conflict management in seven major interventions in the 1990 (Bosnia, Somalia, Rwanda, Haiti, the Persian Gulf, Cambia and El Salvador) but could have saved $130 billion through preventive action. In Kosovo, almost any kind of preventive action would have been cheaper than the $46 billion the international community is estimated to have spent on military action, humanitarian relief and post-conflict reconstruction.
When we talk about prevention, it is important not just to look at the direct conflict triggers, but also at the root causes, such as poverty, political repression, the debt burden and uneven distributions of wealth. So, we have our work cut out for us.
Call to action
I am optimistic because you are here, and your generation has already shown that it will not give up. You should never underestimate the power that you have. This is about your lives too, and the future you want. We count on you to join us in building a world in which all people are included, enjoy respect and can live in dignity.