The global challenge of protecting human rights: promising new developments.

AuthorNanda, Ved P.
  1. INTRODUCTION

    The ongoing tragedy in Darfur (1) reminds us every day how enormous the challenge is at the international level to protect human rights of individuals and groups suffering from the excesses of tyrannical regimes. A similar grim situation faces those who live in failed states. The existing international machinery is ill-equipped, inadequate, and ineffective for providing the needed protection. As the U.N. Secretary-General noted in his March 2005 follow-up report to the outcome of the Millennium Summit, "[c]hange is needed if the United Nations is to sustain long-term, high-level engagement on human rights issues, across the range of the Organization's work." (2) He emphasized the need to strengthen the U.N. human rights machinery by providing more resources and staff within the Office of the U.N. High Commissioner for Human Rights (OHCHR). (3) He called for the human rights treaty bodies to be more effective and more responsive to violations of the rights under their mandate, which in turn necessitates the finalization and implementation of uniform guidelines on reporting to all treaty bodies. (4)

    Noting that the Security Council is fully authorized under the U.N. Charter to use military force, including preventively, to preserve international peace and security when there exist latent threats, the Secretary-General asked rhetorically, "[a]s to genocide, ethnic cleansing and other such crimes against humanity, are they not also threats to international peace and security, against which humanity should be able to look to the Security Council for protection?" (5) He also took special note of the need to replace the discredited U.N. Commission on Human Rights by a smaller and more effective standing Human Rights Council. (6)

    Subsequently, Heads of State and Government who met at a World Summit at U.N. Headquarters in New York from September 14-16, 2005, agreed in principle to strengthen the U.N. machinery on human rights. (7) However, the recommendations were in general terms, leaving the specifics for the General Assembly to decide at a later date. A promising development, however, was the agreement on the responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. (8)

    I will discuss here a few promising new developments that should result in enhancing the protection of human rights. The first such development is the recognition by U.N. member states of a "responsibility to protect their populations; the second is their promise to strengthen the Office of the High Commissioner for Human Rights; and last is the decision by member states to replace the U.N. Commission on Human Rights by an effective Human Rights Council.

  2. THE RESPONSIBILITY TO PROTECT POPULATIONS FROM GENOCIDE, WAR CRIMES, ETHNIC CLEANSING, AND CRIMES AGAINST HUMANITY

    The need to protect victims of civil wars, collapsed states, and repressive state practices resulting in massive violation of human rights is undeniable. However, controversy surrounds the claim that there exists a valid right to intervene by military action against a state on humanitarian grounds to protect peoples at risk in that state. (9) Although the United Nations took coercive action, invoking a Chapter VII determination that the humanitarian crisis was a threat to international peace and security, to protect the Kurds from Saddam Hussein's brutality after the first Gulf War, (10) the shameful inaction of the world community in the face of the Rwandan genocide as the screams of hundreds of thousands of innocent men, women, and children being massacred fell on deaf ears in the Security Council; there was soul-searching the world over on how to protect such victims. Questions were being raised as to whether along with the rights associated with sovereignty there was not also an obligation on a sovereign to protect those under its jurisdiction.

    Along with academic writing on the subject, several governments took policy initiatives to consider the question. Among the major initiatives were those by the Danish government, (11) the Dutch government, (12) the Swedish government, and the Clinton administration. (13) The Canadian initiative, that of the International Commission on Intervention and State Sovereignty (ICISS), is the most influential of all these initiatives and was undertaken in response to the challenges posed by Secretary-General Annan in his General Assembly addresses, first in 1999 and then again in 2000. This initiative issued a report, entitled "The Responsibility to Protect." (14) In Kofi Annan's words, "if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica--to gross and systematic violations of human rights that affect every precept of our common humanity?" (15) The government of Canada had established the ICISS in cooperation with a group of major foundations. It may be recalled that the 1999 NATO intervention in Kosovo had taken place in the face of a seeming paralysis and inaction at the United Nations. (16)

    After deliberations on legal, moral, operational, and political aspects of the issue, and after wide consultations around the world, the Commission concluded that as an exceptional and extraordinary measure, military intervention for human protection purposes is warranted only when there is:

    [S]erious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind: A. large-scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or B. large-scale 'ethnic cleansing', actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape. (17) According to the Commission this was the "just cause" threshold. It outlined four precautionary principles to guide the use of force--right intention, last resort, proportional means, and reasonable prospects of success--in halting or averting the suffering "with the consequences of action not likely to be worse than the consequences of inaction." (18)

    Earlier, in the mid-1990s, the Special Representative of the Secretary-General on Internally Displaced Persons, Francis Deng, had already advocated the responsibility concept pertaining to sovereignty in his studies--in 1995, Frontiers of Sovereignty, (19) and in 1996 (co-authored with others), Sovereignty as Responsibility: Conflict Management in Africa. (20)

    It was, however, the Canadian study on the topic that received most attention of Member States and the United Nations, and the document adopted by the September 2005 Summit of Heads of State and Government reflects the study's recommendations.

    Kofi Annan again broached the subject in his September 2003 address to the General Assembly as he urged the Security Council members:

    [T]o engage in serious discussions of the best way to respond to threats of genocide or other comparable massive violations of human rights--an issue which I raised myself from this podium in 1999. Once again this year, our collective response to events of this type--in the Democratic Republic of the Congo, and in Liberia--has been hesitant and tardy. (21) Subsequently, he established a High-Level Panel on Threats, Challenges and Change of eminent persons to examine the current challenges to peace and security and the contribution that collective action can make in addressing these challenges.

    In its December 2004 report, the High-Level Panel observed that currently state sovereignty "clearly carries with it the obligation of a State to protect the welfare of its own peoples and meet its obligations to the wider international community." (22) However, when a state is unable or unwilling to meet this responsibility, "the principles of collective security mean that some portion of those responsibilities should be taken up by the international community...." (23)

    After noting that "[c]ollective security institutions have proved particularly poor at meeting the challenge posed by large-scale, gross human rights abuses and genocide" (24) and acknowledging Rwanda as the biggest failure, (25) and further noting that the humanitarian disasters in Somalia, Bosnia, Rwanda, Kosovo, and Darfur "have concentrated attention not on the immunities of sovereign Governments but their responsibilities, both to their own people and to the wider international community," the Panel stated:

    [T]here is a growing recognition that the issue is not the "right to intervene" of any State, but the "responsibility to protect" of every State when it comes to people suffering from avoidable catastrophe--mass murder and rape, ethnic cleansing by forcible expulsion and terror, and deliberate starvation and exposure to disease. (26) Having examined the prior failures of collective security, the Panel concluded:

    We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to...

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