Sixth UNSG Report on R2P: International Assistance and the Responsibility to Protect in Southeast Asia

This is an excerpt from R2P IDEAS in Brief by Dr Noel M. Morada, Director of the Regional Diplomacy and Capacity Building program of the Asia Pacific Centre for the Responsibility to Protect (AP R2P).

The UN Secretary General’s sixth report on the Responsibility to Protect (R2P) since 2009 focuses on Pillar 2 (international assistance) and the role of the international community in encouraging and helping states to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The report focuses on the three core elements of Pillar 2, namely, encouragement, capacity-building, and protection assistance and provides some examples of good practices at national, regional, and international levels. It also identifies a number of challenges to
the implementation of Pillar 2 and sets out several recommendations for advancing this important pillar. The Secretary General’s Report will be the topic of this year’s Informal Interactive Dialogue on R2P held by the UN General Assembly this month.

Since 2009, a number of Association of Southeast Asian Nations (ASEAN) member states participated in the annual dialogue on R2P, with four of its ten members—Indonesia, Malaysia, Singapore, and Thailand—reflecting on the Secretary General’s Report in last year’s dialogue. For the first time, Southeast Asia will be represented among the Panelists in this year’s Interactive Dialogue as former ASEAN Secretary-General, Dr. Surin Pitsuwan, will address the General Assembly on this topic. Dr. Surin currently serves as Chair of the High Level Advisory Panel on the Responsibility to Protect. At the request of the Mr. Adama Dieng, Under-Secretary-General of the UN and Special Adviser on the Prevention of Genocide, the High Level Panel will present a report on the steps that ASEAN might take to mainstream R2P in Southeast at the United Nations on 9 September this year.

This policy brief highlights some important points in the Secretary-General’s Report on R2P and identifies a number of priority areas for international assistance that are relevant to ASEAN member states and that could contribute to capacity building at the national and regional levels. Specifically, it focuses on the need for continuing support for the promotion of human rights protection, conflict prevention, peace, and reconciliation; the creation of national architectures for mass atrocities prevention in ASEAN states; the need to deal with past atrocities; and the importance of inter-faith or communal dialogue.

Read the full brief here.

The Prevention of Atrocity Crimes in the ASEAN Region: The Role of Parliamentarians

Image

Excerpt of Spotlight on R2P by Dr Noel M. Morada, Director (Regional), Asia Pacific Centre for the Responsibility to Protect

The United Nations Office of the Special Adviser on Genocide Prevention (OSAPG) and the ASEAN Parliamentarians for Human Rights (APHR) organized a seminar in Bangkok on 27-28 March 2014 on the role of parliamentarians in promoting mass atrocities in Southeast Asia.  The two-day meeting was attended by 14 current and former parliamentarians from Cambodia, Indonesia, Malaysia, Myanmar/Burma, the Philippines, Singapore, and Thailand along with specialists from the UN, Rutgers University, and the Asia Pacific Centre for the Responsibility to Protect (AP R2P).  Sessions during the seminar included: 1) international legal framework for the punishment and prevention atrocity crimes; 2) socio-historical perspective in analyzing mass atrocity crimes; 3) strategies and policy options for the prevention of atrocity crimes; 4) international and regional human rights mechanisms; and 5) the role of parliamentarians in the prevention of mass atrocity crimes.  Noel Morada presented lectures on the R2P norm and the challenges and opportunities in the prevention of mass atrocity crimes in Southeast Asia.  In the second day of the meeting, participants also had a brainstorming session to outline priority issues that the APHR could focus on, including some concrete recommendations on how to operationalize R2P and mass atrocities prevention in the region. 

Neri Colmenares, a member of the House of Representatives of the Philippine legislature, presented the Inter-Parliamentary Union’s (IPU) Resolution on R2P (Enforcing the Responsibility to Protect: The Role of Parliament in Safeguarding Civilians’ Lives), which was adopted in its 128th session in Quito, Ecuador on 27 March 2013.  Among the relevant tools identified in the resolution that were highlighted in his presentation were the following:

  • Promote public education and awareness-raising in preventing genocide, war crimes, crimes against humanity, and ethnic cleansing;
  • Use of social media to denounce acts of violence against women and children and to fight impunity;
  • Adopt laws and policies to protect women and children, to prevent and criminalize sexual violence, and to provide redress for victims in times of peace and conflict, including the implementation of UN Security Council resolution 1325;
  • Ensure that international treaties to which states are parties are incorporated in domestic laws, particularly those dealing with human rights and protection of civilians;
  • Adopt measures to respect rights of civilians caught in armed conflicts;
  • Take necessary measures in bringing states’ criminal and military law in accordance with international laws for protection of civilians in armed conflicts;
  • Use parliamentarians’ international network to promote the universal ratification of the Rome statute (International Criminal Court);
  • Encourage their respective governments to support the creation and effective functioning of early warning systems and response at the national, regional, and international levels;
  • Include funds in the state’s national budget for protection of populations from violence and ensure their safety; and
  • Assume responsibility in protecting the rights of refugees and their right to international protection, including fulfillment of their states’ obligations to protect refugees and asylum-seekers.  

Colmenares also pointed out that, apart from legislation or filing of bills in parliament, legislators also have two other important functions that are useful in promoting the prevention of mass atrocity crimes: to conduct investigation in-aid-of legislation and advocacy work.  For example, legislative investigations can be an effective tool in enforcing R2P by holding accountable the executive or cabinet if it fails to effectively implement laws on human rights protection; inquiring into mass atrocity crimes committed by law enforcement agents or the military; or ensuring the state’s compliance with international standards on human rights protection.  The advocacy functions of parliamentarians include promoting awareness and education among their constituents about human rights protection, access to justice, and rule of law; encouraging citizens to file complaints against impunity and human rights violations; and promoting the inclusion of human rights protection, respect for the rights of minority groups, and tolerance for diversity in the school curricula through resolutions.  Across the region, parliamentarians could also engage in dialogue and exchange of information on resolutions, domestic laws, and results of investigations on human rights protection, laws against genocide and mass atrocity crimes, as well as education and training for incoming legislators on human rights and civilian protection. 

Some of the important issues raised during the meeting include: 1) protection of minority groups, women, and children in conflict areas of Myanmar/Burma, including the Rohingyas in Rakhine state; 2) the limitations of the UN and ASEAN human rights mechanisms in addressing and responding to human rights problems in the region; and 3) the need to explore alternative venues for addressing human rights violations and mass atrocity crimes in Southeast Asia.  Of particular interest to some parliamentarians in the seminar were cases filed in other countries against former heads of government for human rights violations during their tenure (e.g., in Spain against Pinochet of Argentina; and in Hawaii, USA against Marcos of the Philippines) and what other parliaments/states can do to support not only the prevention of mass atrocity crimes occurring in other countries but in prosecuting the perpetrators of these crimes.  Beyond advocacy, education, and building awareness about R2P and prevention of atrocity crimes, a number of parliamentarians stressed the need to implement the norm and respond more effectively to ongoing human rights violations and atrocity crimes happening in the region. 

To read more see: Prevention of Atrocity Crimes in the ASEAN region: the Role of Parliamentarians, Spotlight on R2P

 

An analysis of UN Secretary-General New Report on Atrocities Prevention

ImageThe Responsibility to Protect: State Responsibility and Prevention, released last month, is Secretary-General Ban Ki-moon’s fifth report on the responsibility to protect. It explores the idea that lies at the principle’s core – that primary responsibility for the protection of populations from genocide, war crimes, crimes against humanity and ethnic cleansing lies with each individual state. While state responsibility for protection – which also entails effective prevention – may appear obvious, the role that local and national actors play is frequently overlooked in the research on conflict prevention in general, and mass atrocities prevention more specifically. Much is known about how and why state responsibility manifestly fails, but little is known about what responsible sovereignty looks like, particularly when the risk of potential atrocities is salient. The Secretary-General acknowledged this blind spot in his 2009 report, Implementing the Responsibility to Protect: ‘More research and analysis is needed on why one society plunges into mass violence while its neighbours remain relatively stable…’

This fifth report marks an important step in understanding the character of effective state responsibility. Such an approach is needed for two key reasons. First, as the report points out, no state is entirely absent of risk, therefore the challenge of prevention remains universal. Second, there are numerous examples of nationally and locally driven initiatives – already in practice – that provide insights into the varied ways that national resilience is strengthened and the risk of potential atrocities is mitigated. Cumulatively, these insights comprise a powerful repository of knowledge that every state can draw on to consider ways to strengthen their sovereignty through improved strategies of prevention. 

The Secretary-General frames this understanding of state responsibility by first identifying key risk factors associated with mass atrocities, then providing illustrations of the ways that states devise strategies which strengthen national resilience and manage such risk over time. The relationship between risk and resilience is complex, deeply contextual and dynamic. In order to convey just how varied and contextually driven the process of risk mitigation is, the report provides a number of specific examples policies and strategies from many different states, all which, in their own ways, strengthen national resilience.

The report stresses that atrocities crimes are processes, ‘not singular events’, for which there is no sole cause or simple set of causes. Instead, there are a range of factors that are associated with the increased risk of atrocity crimes. While the presence of risk does not inevitably lead to the perpetration of atrocities, these crimes are rarely committed in their absence. Six broad factors are identified:

  1. A history of discrimination and human rights violations.
  2. The motivation to target a specific identity group.
  3. The presence of armed groups, or militia, who have the capacity to commit atrocity crimes.
  4. The arising of circumstances that make committing atrocity crimes easier (such as the existence of a policy of targeting civilians, or a strengthening of military capacity).
  5. The inability of a government to prevent such violence, through lack of capacity or the absence of institutions that normally protect a population.
  6. The perpetration of violence that are regarded as ‘elements of genocide, war crimes and crimes against humanity’ often herald an escalation of violence.

The report then points out that actions by states to confront such risk can be instrumental in both reducing risk and building resilience in a way that enables it to ‘navigate periods of stress’. It identifies six broad sources of resilience:

  1. Constitutional protections;
  2. Democracy;
  3. State obligations under international law to criminalise genocide, war crimes and crimes against humanity, and the development of national accountability mechanisms;
  4. Transitional justice processes (where appropriate);
  5. Security sector reform;
  6. Measures that address actual or perceived inequalities.

In the report, each broad measure that strengthens resilience is accompanied by illustrations of specific policies and strategies implemented by different states. For instance, in relation to constitutional protection, the report describes three very different approaches. The Canadian Charter of Rights and Freedoms ensures equality of all Canadians, ‘regardless of race, religion, national or ethnic origin, colour, age or physical or mental disability.’ A different example is Croatia’s Constitutional Act on the Rights of National Minorities, which gives all the country’s minority groups to be represented in political, administrative and legal institutions at every level. In South Africa, a broad system of rights for ‘cultural, linguistic, religious and traditional communities’ is acknowledged through ‘the harmonization of customary law with human rights principles.’ These diverse examples provide a glimpse of just how contextually specific such strategies are.

The report also identifies the development of national infrastructure for the promoting and upholding of human rights, as another means of strengthening state resilience. It points out that human rights institutions can play a crucial role in atrocity prevention through the promotion of international standards of human rights and monitoring the integration of such rights into domestic law.

Beyond these broad approaches, the report also highlights some specific measures that can be adopted to incorporate an ‘atrocity prevention lens’ with national governments. In particular, it encourages the designation of an atrocity prevention or RtoP focal point, or an inter-agency mechanism which helps to orchestrate national efforts to formalize plans for atrocity prevention.

The Responsibility to Protect: State Responsibility and Prevention makes a significant and original contribution to the prevention of mass atrocities in three major ways.

First, it challenges the tendency found in much of the literature on conflict prevention to prioritize the role of external actors in deciding not only what the root causes of potential violence are, but also the best strategies for addressing them. Often a distinction is made between prevention actors on the one hand and prevention recipients on the other. By contrast, this report assumes primary agency to lay with each state, and on that assumption it provides illustrations of how various state-based policies and strategies have strengthened resilience and mitigated risk. Understanding national sources of resilience is important even when international assistance is needed, as it allows for such assistance to facilitate processes already in place.

Second, the report stresses that it is necessary to understand national sources of resilience because the presence of risk does not inevitably lead to genocide or other atrocity crimes. The tenuous causal relationship between the presence of risk and the perpetration of atrocity crimes is well known by scholars of comparative genocide studies. However, there has been very little research within the field of comparative genocide studies on why such violence does not occur, particularly when there is at least a moderate level of risk. By addressing that question, this report explores a neglected yet crucial dimension of atrocities prevention.

Third, through the promotion of atrocities prevention focal points, it makes a strong case for ways that states can engage in prevention without over-burdening already stretched national budgets. Focal points have the potential to cast a preventive lens over existing policies and strategies that already have their own specific objectives, and demonstrate how they also have a protective effect against atrocity crimes. By doing so, it precludes the need for a distinct set of strategies and resources. When states have institutions that are accountable and inclusive, and are able to provide services and promote opportunities in an equitable manner, then they are already mitigating the risk of atrocity crimes. Focal points for atrocity prevention provide clarity and guidance for such processes.

As the Secretary-General stresses, ‘there is no one-size-fits-all approach to atrocities prevention.’ Effective prevention must be tailored to each country’s unique historical, cultural, economic and demographic circumstances. Those that know these circumstances best – local and national actors – have the greatest capacity to generate long term strategies that manage and reduce the risk of atrocities over time.

Stephen McLoughlin, Griffith University

Gender identity and disaster response in Nepal

We kindly thank Forced Migration Review for allowing us to cross post this piece from their Special Issue on Sexual Orientation and Gender Identity and the Protection of Forced Migrants (April 2013).  The full issue may be found at: www.fmreview.org/sogi

Agencies need to be mindful of the special needs of LGBTI victims of disasters in order to enhance protection and minimise unintended harmful consequences of relief efforts.

Although there is a need for more research in this area, there is evidence to suggest that LGBTI persons may be discriminated against during disasters in various ways: being perceived as lower priority for rescue efforts; families with same-sex partners being excluded from distribution of food and other basic supplies; and difficulty visiting injured partners and claiming the bodies of deceased loved ones. A recent study of relocation efforts following floods in southern Nepal in 2008 found that the needs of some LGBTI communities were indeed overlooked and, for some, relief efforts resulted in unintended harmful effects.

Central to the emergence of Nepal’s LGBTI rights movement in the early 2000s was the widespread state violence perpetrated against metis, male-bodied feminine-presenting people who have been alternatively characterised as gay men or transgender women. In the flood-prone Sunsari district, metis are usually referred as natuwas, meaning ‘dancers’. Natuwas typically migrate to Bihar during the wedding season to dance at the ceremonies and engage in sex work. Elements of cultural and religious pluralism – and even reverence – combined with substantial legal progress in recent years mean that many natuwas (and other LGBTI-identified people) live openly in their families and local communities, some with partners.

The 2008 flood in Sunsari and Saptari districts affected an estimated 70,000 people and displaced 7,000 families. In the aftermath of the flood, many natuwas were relocated to areas far away from the border, thus making the migration to Bihar prohibitively dangerous (longer distance, more exposure) and expensive. In addition, no longer living in communities in which they were known meant that some experienced increased discrimination and heightened safety concerns. Lack of informal support networks and fear of organising or attending LGBTI-friendly groups in unfamiliar places left many feeling very isolated.

Some natuwas reported discrimination in the relief process. “When the district leaders came to hand out food supplies, my family got half of what other families got,” explained Manosh.[i] “They told my parents that … the family didn’t deserve the full portion because they had a child like me.”[ii]

Another natuwa was distressed when she was relocated to a plot of land far away from her previous home. “We are safe when we are in the communities who know us and have seen us as we are,” she said. “But when we have to start in a new place, it doesn’t matter if the government gives us money or a house – we are not safe and we have to hide again.”

For people whose gender might be questioned in administrative processes, daily transactions can be difficult and stressful. In situations where insecurity is heightened – such as in humanitarian emergencies – discrepancies between gender presentation and documentation can make people like natuwas targets of increased scrutiny and humiliation, abuse or neglect. One of the central challenges for displaced LGBTI people is the multiple document checks one encounters along the way. Passing through check points, registering in relief camps, seeking medical attention, and enrolling in school are some of the points at which documentation can become an issue, especially for transgender people or people who do not identify or present as the gender marked on their documents.

In addition, many administrative and material relief systems are disaggregated by two genders – male and female – and there is a dearth of attention paid to transgender or gender-variance issues. 

Disaster-prone Nepal, with its new protected legal status for a ‘third gender’ category[iii]  presents a compelling case of how legal recognition can enhance protection for LGBTI people in emergencies. In addition, agencies working in such situations should consider the following measures:

  • requiring staff involved in relief efforts to participate in appropriate sensitivity training
  • ensuring displaced LGBTI disaster victims have access to social support and safe places to lodge complaints and raise safety concerns
  • providing documents that allow gender-variant people to be acknowledged as such
  • taking into account informal economic activities, including sex work, when designing relocation programmes in order to protect the livelihoods of people like natuwas.

Kyle Knight kylegknight@gmail.com is a journalist in Kathmandu, Nepal. Courtney Welton-Mitchell Courtney.Mitchell@du.edu is an Assistant Professor in the International Disaster Psychology programme in the Graduate School of Professional Psychology at the University of Denver.


[i] Not her real name

[iii] Nepal’s Supreme Court ruled in 2007 that the government should issue ‘third gender’ citizenship certificates for people who do not wish to be identified as male or female; implementation of this policy started in January 2013. The third gender category is labelled ‘other’ on official documents.

Asylum for persecuted homosexuals in the Republic of Korea

We kindly thank Forced Migration Review for allowing us to cross post this piece from their Special Issue on Sexual Orientation and Gender Identity and the Protection of Forced Migrants (April 2013).  The full issue may be found at: www.fmreview.org/sogi

Two recent successful claims for asylum suggest that the Republic of Korea may be prepared to serve in the future as an important country of asylum for those suffering persecution due to their sexual orientation.

While Korean society has certainly become more accepting of differing sexual orientations over the last fifteen years, many elements of Korean society remain quite conservative, and open affirmations of homosexuality are rare. Nevertheless, gays and lesbians have equal rights and are protected by anti-discrimination law,[1] and two relatively high-profile asylum cases in recent years have resulted in gay men being granted asylum in Korea.

The first case involved an asylum seeker from Pakistan, a married attorney from Lahore with four children. He had been arrested and detained briefly in Pakistan, and had also been subjected to blackmail and intimidation by family members and people around him. His application for refugee status in Korea was rejected by the Ministry of Justice in June 2009 and the claimant then filed an appeal, which was heard by the Seoul Administrative Court.

The court found the claimant’s personal statement to be coherent and persuasive, and granted him asylum, concluding that if he were returned to Pakistan he would have a “high possibility of being persecuted by Muslims and the Pakistani government because he was gay”. The court explicitly explained that persecution could come from either the government itself or from private actors. In addition to the claimant’s testimony, the court’s conclusion was based largely on Country of Origin Information from foreign jurisdictions – specifically, a UK Border Agency report on Pakistan that said Pakistani police officers frequently blackmail homosexuals, as well as a Canadian Refugee and Immigration Committee report detailing instances of persecution of gays in Khyber and Lahore. The court also noted clauses in both Pakistani law and Islamic law criminalising homosexual behaviour.

In 2011, another claim of sexual orientation-based persecution was presented to the same court by a Nigerian asylum seeker. Here the claimant stated (and the court accepted as credible) that the Nigerian government had rejected him from a government job because he was gay, and had denied him compensation when his house was demolished in an urban planning project because of his sexual orientation. When he protested at the lack of compensation, a group of people tried to attack him at his house. The Seoul Administrative Court ruled in favour of the appellant, basing its opinion largely on an analysis of Country of Origin Information compiled from foreign sources, including a Canadian Immigration and Refugee Board report, an Australian Refugee Appeal Tribunal research report, a US State Department human rights report, an Amnesty International report and others. The court also took into account the fact that Nigerian law criminalises homosexual relationships.

Taken together, these two cases show a distinct openness to allowing asylum based on sexual orientation. The court fully accepted the credibility of the claimant in each instance. In the case of the Pakistani asylum seeker, it even went out of its way to stress that the fact that the claimant was married and had children did not mean he was not gay, and that this was not unusual behaviour in the Pakistani context. The court also had no trouble locating Country of Origin Information from reputable sources that gave credence to the claimants’ fears of persecution.

The judges also declined to address other potential arguments that are sometimes used to deny asylum in other parts of the world. For example, neither ruling addressed the possibility that the claimant might be able to avoid persecution by living in a different part of his home country or by hiding his sexual orientation, although in the Nigerian claimant’s case the court did state that “if a person cannot express his sexuality due to the fear of being persecuted, it can be regarded as a sort of persecution”, thus implying that it would be inappropriate to return someone to a country where they could remain secure only by disguising their sexuality.

The importance of these two single cases to Korean refugee law should not be overstated. However, these decisions are significant in that they show that, despite being relatively new to refugee jurisprudence, the Korean judiciary is willing to grant asylum based on sexual orientation persecution to applicants coming from countries that are considered to be hostile to gays.

Andrew Wolman amw247@yahoo.com is Associate Professor, Graduate School of International and Area Studies, at the Hankuk University of Foreign Studies, Seoul, Korea.

 


[1] With the exception of men in the military.