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National Human Rights Institutions and the Responsibility to Protect: Reflections from the Philippine Experience

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Remarks by Loretta Ann P. Rosales, Chairperson of the Commission on Human Rights of the Philippines

Good afternoon to everyone. It is truly a pleasure to take part in this conference commemorating the 10th anniversary of the World Summit on the Responsibility to Protect. I hope that my reflections on the role that the Commission on Human Rights has been playing since 1987 with respect to preventing the four kinds of International Humanitarian Law (IHL) violations covered by the responsibility to protect, would inform subsequent discussions in this forum and elsewhere.

When the term responsibility to protect is mentioned the first thing that comes to mind for most people is international intervention, whether by a multilateral armed force sanctioned by the United Nations Security Council or – for better or worse – an international coalition of the willing as we most recently saw in Afghanistan, Iraq and some African states. Pillars I and II in respect to core issues of prevention or risk management are given lesser attention. The issue of whether, and how, the international community could support local mechanisms before and during extreme socio-political conditions is an issue only now emerging out of the din.

The fact remains, however, that all the countries that have experienced genocide and other mass atrocities in the past 40 years had no strong domestic protection mechanisms in place, let alone robust national human rights institutions. This leads us to seriously consider the empirical basis of the assertion that NHRIs could contribute significantly to the prevention of genocide and other mass atrocities. From a Pillar II perspective, my answer is yes, because national institutions in fact contribute a lot to building inclusive and resilient societies.

Throughout our history as a nation, there have been several bouts of violence grave enough for many observers to doubt the survival of Philippine democracy. We are home to Asia’s longest running communist insurgency. Then there is the longstanding internal armed conflict in Mindanao, which has cost 60,000 deaths, 2 million IDPs, 535 mosques and 200 schools destroyed and 35 towns and cities hit by serious violence. The economic costs are equally staggering: more than 80 billion pesos or USD 2 billion. President Macapagal-Arroyo’s de facto Martial Law regime saw the killing, disappearance, and torture of thousands of human rights activists. And just a few weeks ago, the carnage in Mamasapano, Maguindanao happened in the midst of parliamentary deliberations on the new Bangsamoro autonomy law. This incident seriously undermines President Aquino’s push for a final political settlement not just with the MILF but with other armed groups as well. At no point in recent history has the dividend for peace dropped so low in the eyes of the public as in the aftermath of the Mamasapano incident.

Yet Philippine democracy thrives. Coup rumors and vain attempts at popular uprising capitalizing on widespread anger over the grievous death of 44 police commandos have all but fizzled out. Now public discourse is shifting focus from retribution and war, to justice anchored on truth, accountability and peace. It is as Martin Luther King had described it many years ago: the arc of the moral universe is long but it bends towards justice.

I dare not say that the Commission on Human Rights, as the National Human Rights Institution, is responsible for this alone. From a constitutional perspective, democratic guardianship is assumed neither by the Judiciary nor by independent constitutional bodies like the Commission on Human Rights but by all sectors. A healthy democracy is everyone’s business.

So where does the work of Commission on Human Rights add significant value to the process of firming up our democratic fundamentals, and by implication, inclusiveness and resilience? It is with respect to three notions of governance: realizing human rights for all, ensuring access to justice and eradicating poverty. Take note that these are also the roots of vulnerability. The role of an NHRI is to help the forces of society to effectively translate international human rights standards to domestic laws, polices and programs.

Within the bureaucratic structure of government NHRIs stand out. Whereas the rationale for independent state institutions taking charge of such sensitive areas as elections, audit, the civil service and anti-corruption has gained widespread acceptance, NHRIs continue to struggle with conceptual issues of identity and acceptance. The Asia Pacific Forum of National Human Rights Institutions, for example, counts only 15 full and 7 associate members. That leaves 47 other Asia Pacific countries without NHRIs compliant with the Paris Principles. Interestingly, this correlates with statistics on Rome Statute ratifications in the Asia Pacific: a measly 17 out of 69 as of 2013. I hope that Cambodia as a beacon of support in Southeast Asia for individual criminal responsibility would soon have its own Paris Principles-compliant NHRI.

In a situation where other government agencies as well as the Commission’s own staff members alike struggle with the dialectical relationship of human rights and governance, I have deliberately positioned the Commission to respond to two strategic issues: peace building and security sector reform.

As its own contribution to the Bangsamoro peace process, the Commission in 2012 decided to create a regional office for the Autonomous Region in Muslim Mindanao, then facilitated its conversion into an autonomous Regional Human Rights Commission. In so doing the Commission placed human rights protection and promotion at the center of the governance question in the future Bangsamoro region. Similarly, the Commission’s stake in security sector reform radically increased as a result of the so-called La Breza process of consolidating the various human rights focal points in the AFP, PNP and other security sector/law enforcement agencies. As a result, human rights violations involving the members of the security sector are now considered by both sides of a common understanding: human rights compliance increases operational effectiveness and efficiency, and enhances the rule of law.

Since the first UPR review in 2008 the Commission has been pushing society towards a better appreciation of community-based human rights mechanisms. For example, the Commission is working on developing a community-based human rights impact assessment (HRIA) tool in response to the challenge of bringing the UN Guiding Principles on Business and Human Rights as close as possible to localities affected by mining and other extractive industries. Remarkably the very first criminal prosecution under the domestic codification of IHL concerns the SMI/Xstrata project in Tampakan, an extractive industry hotspot in Mindanao.

In a similar vein, the Human Rights Victims Reparation and Recognition Act of 2013 puts forward three principles: First, responsibility may be personal, but accountability can ultimately be attributed to the State in light of the immense historical and inter-generational impact of gross human rights violations; Second, the State must never again be given over to internal security or public order considerations that illegally derogate from the International Convention on Civil and Political Rights and other human rights instruments; and Third, public officials must be conscious of their human rights duties in the same manner that ordinary people must be empowered to exercise their basic rights.

All of these principles enflesh the preventive role of the Commission under R2P. Under my watch, the Commission has been applying them under the slogan “end impunity and build a culture of human rights”. While the traditional approach had been to overly rely on domestic penal and civil laws, two developments have now challenged this approach. On one hand, there is the resumption of peace negotiations with both the MILF and the Communist Party/New People’s Army/National Democratic Front, which has resulted in the assimilation of human rights and humanitarian legal standards in bilateral protocols. On the other hand, the ratification of the Rome Statute in 2011, as well as increased international scrutiny of the State’s human rights compliance through the Universal Periodic Review and special procedures, have broadened the normative framework applicable to local cases.

Ours is a stronger NHRI because we are capable of rooting out the issues that nurture social unrest. Opening more pathways to justice also deepens the social impact of human rights. Our work empowers people in the community to stand up and claim dignity for themselves through concerted civic action. In so doing we extend the bridge ever downward to the village level, in much the same way that Eleanor Roosevelt described human rights’ true home: in the world of the individual person, so close and so small that they cannot be seen on any maps of the world. We have to bring the rights/responsibility discourse to such places, if we are to realize equal justice, equal opportunity and equal dignity.

In the Martial Law cases, the Commission made it a point to correlate the reparations process with the memorialization process by accepting not just compensation claims but oral histories as well. In the Mamasapano case that I have mentioned earlier, the approach is the same. Track 1 involves conducting an investigation from a legal standpoint, while Track 2 entails activating peace and human rights at the community level through a mix of cultural, psychosocial and community development interventions. In the end, what emerges is a more grounded understanding of structural violence, where one sees not just rebels nor killers but individuals evolved from birth as children of war.

Especially in developing countries characterized by a weak rule of law, strong NHRIs could effectively prevent mass atrocities by helping rights holders and duty bearers alike to come to terms with their humanity. Whenever I visit police officers or soldiers wounded in battle, my objective is to make them feel that their rights as human beings are being looked after. And when I talk to people in communities displaced by battle, my message is the same: they too matter. By and large, this is what inclusion means in the context of conflict.

In closing, I would say that clearly the roadmap to prevention of genocide, war crimes, ethnic cleansing and crimes against humanity includes activities already ascribed to national human rights institutions. What needs to be done is to build the capacity of these institutions in order to inhibit inflammatory factors, specifically by building a professional and accountable security sector, supporting effective transitional justice and political mechanisms as well as local capacities to resolve conflict.

Thank you, and I look forward to an interesting and lively discussion this afternoon.

The Crisis in Syria Turns Four: Civil Society Organizations Call for Renewed Push on Restraint of Security Council Veto Use

Image Courtesy: Amnesty International

Syria: Turn the lights back on

This Sunday, 15 March 2015, marks the 4-year anniversary of the crisis in Syria. For over 1,460 days, the Assad regime—and to a lesser extent, elements of the opposition—have inflicted a ruthless succession of war crimes and crimes against humanity against civilian populations in Syria. Such atrocities, which according to UN Secretary-General Ban Ki-moon should “shock the international conscience”, include the intentional starving of entire communities for the purpose of gaining a military advantage; the terrorizing of populations through the illegal use of barrel bombs and chemical, artillery, and cluster munition assaults; and inflicting gruesome torture techniques upon thousands of prisoners.

And yet—despite the staggering figures of 210,000 dead, 3.8 million civilians seeking refuge in neighboring countries, and 7.8 million internally displaced—the hopes for an end to the Syrian crisis have dwindled rather than improved over the course of 2014. Though the Assad regime’s human rights violations dwarf those of all other actors, the emergence of the Islamic State of Iraq and the Levant (ISIL), a new actor ready and able to commit grisly crimes, has further heightened the risk of mass atrocities in Syria. ISIL’s dramatic rise has been used as a tool by the Assad regime to legitimize its inexcusable actions in the name of fighting ‘terrorists’—a catch-all term used by the government when referring to protestors since the start of the crisis. Furthermore, as the international community increases its response to the crimes committed by ISIL, it risks overshadowing efforts to respond to and resolve the larger Syrian crisis, thus further empowering the Assad government.

In 2005, UN Member States agreed that they had an individual as well as collective responsibility to protect populations from genocide, war crimes, crimes against humanity, and ethnic cleansing—a responsibility which the Syrian government has clearly failed to uphold. However, the below signatories welcome the role that many have played in upholding their
Responsibility to Protect by taking strong, often unprecedented measures within their mandates in an attempt to protect Syrians. Such actions include, inter alia, the six General Assembly resolutions on the crisis; the establishment by the Human Rights Council of an Independent Commission of Inquiry to investigate atrocities; the sanctions and arms embargoes imposed by the League of Arab States; the absorption of millions of Syrian refugees by Lebanon, Jordan, and Turkey; and the consistent monitoring/documentation, advocacy, and delivery of aid by civil society.

Nevertheless, the UN Security Council, largely due to the veto power wielded by Russia and China, has failed to match the unparalleled actions mentioned above. Despite displaying fleeting unity on resolutions on the removal of chemical weapons and the delivery of humanitarian aid, the four vetoes cast by Russia and China on most Security Council resolutions pertaining to Syria point to that body’s powerlessness to uphold RtoP when the veto is used. Such blatant inaction by the UN organ chiefly responsible for maintaining international peace and security has exacted catastrophic consequences on the people of Syria by delaying and hindering early and subsequent international action.

In this regard, the undersigned civil society organizations working to advance the Responsibility to Protect reiterate their support for efforts being taken, including under the leadership of France as well as Member States within the Accountability, Coherence, and Transparency Initiative, to ensure that Permanent Members refrain from using their veto power when confronted with a crisis in which civilians are at impending risk of atrocity crimes.

A refusal by the Permanent Members to use their veto when the Security Council is facing the most daunting of challenges—that of responding to mass atrocities—would mark a historic step for the Council, both in terms of upholding its Responsibility to Protect and in preserving its legitimacy as the primary organ responsible for maintaining international peace and security. Furthermore, such a measure would both help the international community to speak with one voice when responding to the threat or commission of such crimes and ensure that the aforementioned efforts to protect populations undertaken by other actors are not in vain. The undersigned civil society organizations who are actively working to promote RtoP and protect populations from these most horrific crimes thus urge actors at all levels to remain closely engaged with this issue and continue to advocate for Permanent Members to not obstruct united action to protect populations from atrocities. Four years – forty-eight months – 1,460 days of atrocity crimes show the desperate need for such unity—and the appalling price of not acting on the Responsibility to Protect.

Signed:
1. Action on Societal Violence-KAFA (Jordan)
2. Action pour le Développement et la Paix Endogènes (Democratic Republic of Congo)
3. Al Adala Centre for Human Rights (Saudi Arabia)
4. Alternative ASEAN Network on Burma (Thailand)
5. American Iranian Council (Iran)
6. The Arab Program for Human Rights (Egypt)
7. The Arab Organization for Human Rights—Libya
8. The Arab Organization for Human Rights—Mauritania
9. Asia-Pacific Centre for the Responsibility to Protect (Australia)
10. Budapest Centre for the International Prevention of Genocide and Mass Atrocities (Hungary)
11. Canadian Centre for the Responsibility to Protect
12. Centre for Media Studies and Peacebuilding (Liberia)
13. Coalition for Justice and Accountability (Sierra Leone)
14. Education Centre on the Human Rights of Women Morocco
15. Droits Humains Sans Frontières (Democratic Republic of Congo)
16. Free Tunisia
17. Genocide Alert (Germany)
18. Genocide Watch (USA)
19. Global Centre for the Responsibility to Protect (USA)
20. Global Justice Centre (USA)
21. Global Political Trends Centre (Turkey)
22. Human Rights Information and Training Center (Yemen)
23. Human Security Initiative (Sudan)
24. Igarapé Institute (Brazil)
25. International Coalition for the Responsibility to Protect
26. Inter-Religious Council for Peace-Tanzania
27. Justice Africa Sudan
28. Justice Without Frontiers (Lebanon)
29. Legists Association of Kuwait
30. LuaLua Centre for Human Rights (Bahrain)
31. Middle East Non-Violence and Democracy (Palestine)
32. Minority Rights Group International (United Kingdom)
33. Montreal Institute for Genocide and Human Rights Studies (Canada)
34. Nuon Organization for Peacebuilding (Syria)
35. PeaceNet Kenya
36. Permanent Peace Movement (Lebanon)
37. Salam al Rafidain Organization (Iraq)
38. Scientific Association of Young Political Scientists (Greece)
39. The Stanley Foundation (USA)
40. United Nations Association of Denmark
41. United Nations Association of Sweden
42. United Nations Association of the United Kingdom
43. United to End Genocide (USA)
44. Vision-Gram International (Canada, Democratic Republic of Congo)
45. Women’s International League for Peace and Freedom-Netherlands
46. World Federalist Movement—Institute for Global Policy (Netherlands, USA)
47. Zarga Organization for Rural Development (Sudan)

R2P’s next decade

Delivered by Dr. Simon Adams, Executive Director of the Global Centre for the Responsibility to Protect, at “R2P at 10: Progress, Challenges & Opportunities in the Asia-Pacific,” in Phnom Penh, Cambodia, on 27 February 2015.

It is an honor to be here in Cambodia. I was especially moved by the intervention this morning by our colleague from the Cambodian parliament – herself a child survivor of the Khmer Rouge’s crimes against humanity, a former refugee, and now a parliamentarian dedicated to advancing mass atrocity prevention and the Responsibility to Protect (R2P) in this country and across Southeast Asia.

I have been given the unenviable task of setting an agenda for R2P’s next decade in just nine minutes. As such, I am reminded of the words of the Danish physicist Niels Bohr, an avowed anti-Nazi who also won the Nobel Prize for his work on quantum mechanics, who once quipped that: “prediction is very difficult, especially if its about the future.”

While we can’t determine the precise manner in which global politics, international law and R2P will continue to evolve over the next decade, what we know – from the Holocaust and the killing fields of Cambodia to more recent conflicts and crises – is that mass atrocities are a human evil that are not going away.

The civil war in Syria is almost four years old. Iraq has already become an extension of its battlefield and the Syrian conflict’s sectarian poison is seeping across other borders. Large parts of north-eastern Nigeria, covering territory the size of Belgium and home to millions of people, are now ungovernable as Boko Haram continues to commit atrocities and wreak havoc. We can add to this depressing list of situations that dramatically worsened last year, the deadly conflicts in Central African Republic, Sudan, South Sudan, and Libya.

But in the ten years since R2P was adopted at the 2005 UN World Summit, we have also strengthened our understanding of the methods and measures that weaken and undermine the politics of the machete, the mass grave and the death squad. And as we chart a way ahead for R2P over the next decade, let us remind ourselves that we are experiencing a period of increased instability in the international system.

The United Nations Security Council, at the apex of a creaking and weary UN system, is a twentieth century organisation trying to solve twenty-first century problems. For example, the Council’s response to the crisis in the Central African Republic was tardy, in part, because of many wasted weeks where some members of the Council argued that the former colony was France’s problem, despite the fact that the country has been independent since August 1960.

Syria exposed a more fundamental debility in the UN system, namely the historic anachronism of five permanent members who can veto any attempt by the international community to stop mass atrocity crimes if doing so does not accord with their partisan interests. We need deep reform of the UN Security Council over the next decade. And we need a “statement of principles” on veto restraint in mass atrocity situations in time for the seventieth anniversary of the UN later this year.

These are symptoms of the UN’s structural malaise when it comes to preventing mass atrocities. But ten years since the adoption of R2P, what is the overall health of the norm?

We have won the battle of ideas. We now have near universal acceptance of the abstract concept that all states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. And contrary to what some people would have us believe, there are no longer any clearly defined battle lines between the global “north” and “south,” or the “developed” and “developing” world, on R2P.

We still have to guard against the misuse and abuse of the norm. We are not immune to failure. But the only real debate at the UN these days is about how individual states and the international community should uphold their responsibility to protect in specific cases. The discussion now is about implementation of the most appropriate measures and means, not whether a responsibility exists. This is an enormous and historic change from just ten years ago.

MASS ATROCITY PREVENTION

At the core of R2P is a responsibility to engage. Where states invest in institutional preparedness, we succeed more often than we fail. For example, in 2008 in Kenya a disputed election resulted in ethnic violence that killed 1,133 people and displaced over 663,000. During elections in 2013, however, there was no such widespread and deadly disorder. In between were five years of local, national, regional and international investment in both structural and proximate prevention. These preventive measures covered everything from constitutional change to security sector reform and local peacebuilding initiatives. The lessons from Kenya are too many to be elucidated here, but their relevance certainly extends beyond East Africa.

We are also beginning to better understand the entangled relationship between poverty, underdevelopment and the risk factors that can lead to mass atrocities. Using the post-2015 Sustainable Development Goals, over the next decade we need to use development tools to help ameliorate conflicts where identity politics, social marginalisation, economic inequality and resource disputes threaten fragile societies.

Since 2005 we have also seen the steady development of networks and structures for mass atrocity prevention. For example, the UN’s Human Rights Council (HRC), with its Special Procedures and Universal Periodic Review process, can help us gauge how states are strengthening human rights domestically, and what this means in terms of their institutional resilience to the threat of mass atrocities.

The HRC will always be more of a smoke detector than a fire extinguisher when it comes to mass atrocities, but it is now an indispensable part of our global early warning system, as is the UN Office of the Special Advisors for the Prevention of Genocide and the Responsibility to Protect.

From the United States’ Atrocity Prevention Board to the National Peace Council of Ghana, states are also getting better at consolidating domestic structures. In addition, across regions and continents we have seen the development of state-led communities of commitment, most notably the Global Network of R2P Focal Points, which now encompasses 43 diverse states from the Democratic Republic of the Congo and Côte d’Ivoire, to Guatemala, Australia, the Netherlands and Republic of Korea, to name just a few.

An R2P Focal Point is a senior government representative commissioned to strengthen domestic commitment to atrocity prevention. The Global Network of R2P Focal Points has had high-level endorsement from the UN Secretary- General and should be supported by any government that is serious about prevention.

In this context, I was especially glad to hear Prime Minister Hun Sen pledge yesterday that he will soon appoint an R2P Focal Point, and that he would like to see Cambodia lead on issues related to R2P, including getting more states to ratify the Rome Statute of the International Criminal Court (ICC), in the Southeast Asian region.

PEACEKEEPING AND PROTECTION

Where mass atrocities occur, we need to improve our ability to expeditiously respond. This year is the twentieth anniversary of the Srebrenica genocide where UN peacekeepers shamefully handed over the victims to their executioners.

In an era when eight out of sixteen UN peacekeeping missions have protection of civilians mandates, which involve 90 percent of the 122,000 peacekeepers currently on mission, it is wholly appropriate that the UN is conducting a generational review of peace operations. Other initiatives, like the Secretary-General’s “Human Rights Up Front” plan, also need consolidation across the UN system.

UN Peacekeeping is at the center of civilian protection and conflict stabilization. But the gap between sublime mandates and operational under-resourcing can still swallow up any well-intentioned mission. We need to expand the number of troop contributing countries, decrease the time between the passing of Security Council resolutions and the deployment of forces, improve training and doctrine in mass atrocity response operations, and above all else, ensure that when vulnerable civilians see a blue helmet they are absolutely certain that they will be vigorously protected, not abandoned. The viability and sustainability of regionally-based rapid reaction forces should also continue to be explored.

In the toughest cases, where a state is manifestly unwilling to protect its populations and international military intervention under Chapter VII of the UN Charter is deemed necessary, we need to ensure that protective mandates are not manipulated for opportunistic reasons of “regime change.” That is part of the reason why Brazil’s proposal that there is a “responsibility while protecting” deserved serious diplomatic attention and constructive debate. One of our goals over the next decade should be to ensure that any time the Security Council mandates the use of force, prudential criteria are taken into account. We also need to improve Security Council monitoring and accountability.

However, most future mass atrocity cases that require coercive responses, including military force, will in all likelihood continue to look more like South Sudan or Central African Republic than like the 2011 intervention in Libya. That is to say, they will continue to require complex elements of coercion and consent, with legal authorization of the Security Council and active dialogue about how a state can best uphold its responsibility to protect and how the international community can both assist and compel them to do so. Such cases also demonstrate that R2P’s three pillars have a dynamic and logical (rather than strictly chronological) relationship to one another.

REBUILDING AND BATTLING IMPUNITY

Finally, over the next ten years we need to improve our ability to assist states in rebuilding after conflict. We only need to look to Libya where the failure of the international community to comprehensively engage during the post-2011 rebuilding phase was a contributing factor to the terrorism, lawlessness, corruption and warlordism that have divided the country in half and created two rival governments. Armed groups on all sides are committing war crimes, creating a humanitarian catastrophe and killing their country’s future.

Our other great ten year challenge is the battle against impunity. The ICC is still the most important institutional development in the historic battle against impunity and is, to quote its Chief Prosecutor, the “legal arm of the responsibility to protect.” We need to strengthen the ICC because it has been proven again and again that ending impunity for past crimes is one of the most effective tools for preventing their recurrence. International justice is contagious and accountability in one country can deter potential perpetrators elsewhere.

CONCLUSION

The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, has argued that: “All the fights worth fighting involve long-term struggles… The fights against apartheid, slavery, and colonialism have been fought over the long term, with battles both won and lost….” This is true of the battle against impunity and it is true of our struggle to advance R2P.

From Syria to Nigeria or Rakhine State in Myanmar, those who commit mass atrocities would like nothing better than a return to the world of unrestricted indifference, inaction and impunity. Unfortunately for them, as UN Secretary-General Ban Ki-moon has said, “R2P is here to stay.” Not because it is a cute abbreviation or political affectation, but because it remains the most effective and broadly accepted political tool we have to prevent and protect.

R2P, like all international norms, has no independent volition or agency of its own. A norm cannot succeed because of its academic purity. A norm cannot implement itself. R2P is only as consistent, powerful and effective as practitioners make it. Working together – civil society and UN member states – it is up to us to enhance our ability to uphold the Responsibility to Protect today, tomorrow and over the next decade.

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