Features

September 17, 2008

Juan E Méndez: Human Rights and the Future

Two new horizons of human rights protection have emerged during the first 60 years of the Universal Declaration of Human Rights: the prevention of mass atrocities, and the development of transitional justice. ICTJ President Juan E. Méndez spoke at the American Bar Association's annual meeting about the tasks ahead for the international human rights movement.

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Human Rights and the Future: Advancing Human Rights in a Dangerous World

Remarks by Juan E Méndez

This year marks the Universal Declaration of Human Rights' 60th anniversary. Those sixty years have included stages of standard-setting and of development of protection mechanisms to hold States responsible. More recently, the trend has been to create institutions of criminal justice so that those bearing the highest responsibility for the most atrocious crimes against humanity do not go unpunished. Naturally, those stages are not neatly separated one from the other; there is still much to do in the creation of treaties and substantive norms, much to do to improve the efficacy and legitimacy of international complaint mechanisms, and a long way to go before we can say impunity for atrocities is not the norm.

At the same time, the growth and expansion of the human rights movement presents new challenges and opportunities, as the movement develops new "horizons" of human rights protection. Just to give examples of new ways to promote and protect human rights beyond the realm of civil and political rights (which is where we started), let me cite the principle of equality and the struggle against discrimination in all its forms. Similarly, finding ways to make economic, social and cultural rights "justiciable"-that is, enforceable through court rulings - is a large concern of the present-day human rights movement.

Let me talk about two of those "new horizons" of human rights protection. They are closely related. One is the prevention of mass atrocities, including genocide. The other one is transitional justice, by which we allude to the principles and mechanisms by which societies confront a legacy of gross and consistent violations of human rights and attempt to break the cycle of impunity for them. As you can see, they are new horizons in the sense that the human rights movement has not, until recently, paid particular attention to them. But they are at the same time not far removed from the fundamental ideas and objectives that gave birth to the UDHR sixty years ago.

Preventing human rights violations from occurring in the first place is a problem that has long haunted the human rights movement. We have developed pretty good methodologies to react to abuses when they occur, and we know how to set in motion a machinery of redress at the domestic and at the international level. But the tried and true actions of monitoring, reporting, denunciation and redress have always left us with a sense that all would have been better if we knew how to avoid the abuses before they happened.

After the tragedies of Rwanda and Srebrenica, the international community has placed new focus on prevention, and particularly on the prevention of genocide. This year is also the 60th anniversary of the Genocide Convention--it precedes the UDHR by two days--that supposedly created the obligation to prevent genocide. Yet even the Convention itself does not tell us how to prevent genocide.

It places more of an emphasis on punishment for the crime of genocide, and even there we had to wait almost fifty years before we had an important institution like the International Criminal Court that could punish this crime. Therefore, if after all these years we have made so little progress in punishing the crime, perhaps it is not surprising that prevention of genocide still lags behind. Unfortunately, we still have not determined the mechanisms or the practical measures by which we can break the bottleneck of the international community's political will to act, that is almost always lacking. We must inspire the international community to live up to its commitments, including the recent doctrine of responsibility to protect, and show that this responsibility is more than a paper commitment, that it actually does have meaning in specific conflicts at specific moments.

I can attest to the fact that this is a difficult task, as I served at the UN as the first Special Advisor to the Secretary-General on the Prevention of Genocide between 2004 and 2007, a job created precisely as an experiment to develop capabilities to prevent genocide and other mass atrocities.

In Darfur and in a few other contexts, my colleagues at the UN and I attempted to mobilize the United Nations to take measures to prevent other ethnic, racial, or religious conflicts from degenerating into genocide. Our task was to provide early warning of the possibility of such a deterioration and to suggest early actions the political organs of the UN could take to stem the course of events. We started with the identification of a population at risk, if that population was identifiable by race, religion, ethnicity or national origin and was particularly vulnerable because of its status in the particular national context. We then tried to understand the background to the conflict that had put that population at risk, and to monitor events closely to see if we could detect trends towards improvement or deterioration, and in each case to understand what factors intervened. Then we offered advice to the S-G, and through him to the Security Council, on what measures of early action could be adopted to prevent the worst from happening.

Preventing Genocide

In order to succeed in preventing genocide, I learned that there are four things that we have to do simultaneously:

One is protection. The population we have identified as being at risk must be made safe from physical harm, if necessary by placing military or police forces where they shield them from attack.

The second one is humanitarian relief, because by and large these communities are vulnerable in many different ways. Not only are they vulnerable to mass killings, but they are already in conditions of life designed to bring about their destruction. Therefore, not only is humanitarian relief urgent in its own right, but also because the way humanitarian relief is provided in today's world, it provides a measure of protection just the presence of thousands of volunteers from around the world, dispensing food and medical protection, who bear witness to the plight of targeted populations and make attacks less likely than if they can be performed away from view.

Third is accountability. By and large, very serious crimes have already been committed. However, the perpetrators' sense of impunity for those crimes is an invitation to commit them again and even to escalate their scope and gravity. Impunity for the crimes already committed also creates a sense of vulnerability in the people we're trying to protect, which does not allow them to make decisions for themselves or decide what to do with their lives from now on. Therefore, as I testified to the Security Council after I first visited Darfur, breaking the cycle of impunity is itself a measure of prevention. In this task, the inter-national community is aided greatly by the fact that we have now an institution like the International Criminal Court.

And fourth, we must strive to achieve peace. Unless we work to eliminate the ultimate cause of conflict in a society, these risks of genocide are not going to go away. So we need to work aggressively to bring warring factions to the negotiating table and hammer out a peace agreement that is workable and that addresses the grievances of all parties and affected persons, especially of those who have been innocent victims of the conflict.

It is important to note that we have to work simultaneously on all four of these goals and we should not allow any one of them to be the pre-condition for the others.

The enemies of human rights, like the Government of Sudan in the case of Darfur, will always attempt to condition their consent to certain actions on concessions in another area. In that fashion alone these painful four years, Khartoum was able to thwart the efforts to provide meaning-ful protection and relief by insisting first on acceptance of their terms for commenting to peacekeeping and humanitarian assistance, and also at the peace negotiations.

More broadly, the need to obtain consent from repressive governments in order to protect the downtrodden among their own people, often leads us dangerously to accepting their blackmail and to offer them impunity in exchange for peace. The legitimate pursuit of justice for the victims is often subordinated to the immediate need for any kind of peace, even though time and again, experience shows that the peace obtained in this form is fragile and short-lived, let alone unjust.

A Second "New Horizon"

This brings me to my second "new horizon" of human rights work, because I believe that transitional justice as practiced by human rights activists around the world today can offer some insights into prevention of future violations, as well as on how to make peace and justice reinforce each other in creative ways.

Transitional justice is not a very good name for this specialized field of human rights, but it has become a term of art to describe how we help societies leave behind a legacy of massive and systematic human rights violations and start on the path to a more humane dispensation of rights and a more democratic society. In particular, transitional justice asks, what does the newly democratic state that we are trying to create owe to the victims of those human rights violations that loom large in the legacy of the recent past?

In answer to that question, innovative practices have been taking different shapes in different parts of the world over the last twenty-five years, and new ones arise, as we speak, and present more facets and dimensions every day. They have resulted in several emerging norms in international law.

They are emerging norms in the sense that they are new ways of interpreting norms that have been in the human rights canon all along, as applied to the specific problems of transitions from dictatorship to democracy or from conflict to peace. They are "emerging" because they flow from recent interpretations by authoritative organs and bodies and courts--both domestic and international--in giving life and essence to core principles of human rights protection.

That is, they arise from the obligations assumed by States when they sign human rights treaties, not only to respect human rights (i.e., to refrain from actions that violate them) but to ensure them; that is, to set in motion the apparatus of the State to provide redress to victims when violations take place. At the same time, they are premised on the notion that, if the prohibition on torture means anything, and if the prohibition on extrajudicial execution means anything, it is not only that we don't condone them at the time they happen, but that we don't ex post facto legitimize them by allowing them to go unpunished.

Confronting Legacies of Abuse

These affirmative obligations in confronting a legacy of abuse can in turn be broken down into various components.

One is to tell the truth. Especially where there has been denial and refusal to acknowledge, the state has an obligation to explore the truth to the best of its abilities and to disclose it publicly. That has become known as a right to truth. Whether we call it a right or not, the obligation of the state very honesty to explore every detail of human rights abuses is now so well established that almost nobody denies it anymore. Even proponents of letting bygones be bygones sometimes offer truth-telling exercises as a poor alternative to justice. And, of course, there are many ways that this obligation can be implemented, of which a truth commission is only one.

The state's second obligation is to justice, meaning criminal prosecution of those responsible for perpetrating violations that are so grave and systematic or so massive that they constitute crimes against humanity or war crimes if they were committed in the context of armed conflict. The fact that there is a very well established principle does not mean that it is easy to prosecute and to punish human rights violators. Nonetheless, the principle is very well established now and almost no country claims to be able to pass blanket amnesty laws anymore. One notable and shameful exception - as unfortunately is true with so many human rights principles in the last seven years - is the current U.S. Administration, that is seriously considering a blanket pardon for all those potentially involved in designing, ordering or executing policies in the Global War on Terror that could amount to crimes against humanity or war crimes. A first order of business for the Administration to emerge from this year's presidential election will be to launch a non-partisan, impartial investigation to get to the bottom of all we need to know about these policies, and to recommend courses of action to dismantle the laws, regulations, secret memos and orders that have set back the reputation of the United States as a human rights-respecting nation in the international community.

The state's third obligation is that the victims are owed reparations that acknowledge their plight as victims and their dignity as human beings and as citizens, and recognize them as part of the new dispensation of rights.

The state's fourth obligation is institutional reform and vetting so that those who have abused their power in institutions like the police or the armed forces are no longer able to remain in their positions and to abuse the power of those institutions to commit human rights abuses.

Those are four principles that can be clearly traced to decisions of international bodies and that constitute emerging obligations. Sometimes, we also talk about reconciliation. While that is not one of the obligations, we do recognize that in some cases, especially when the conflict has had ethnic or religious dimensions, it will be necessary not only for the state to fulfill these four obligations in good faith and to the best of its abilities, but also to engage in some form of inter-communal conversations that can have the effect of removing the stigma that blames communities for the harm done by those who claim to represent them.

A Holistic Approach

Of course these obligations are not a menu from which states can choose. They are obligations that have to be approached holistically, comprehensively, and in good faith. Nevertheless, they are obligations of means and not obligations of results. So as long as the effort is conducted in good faith, the State does discharge its responsibility even if the full truth is never known, all cases are not prosecuted, and reparations do not seem to satisfy a sense of proportionality to the loss suffered. It is important, in addition, to have a holistic, comprehensive approach to these obligations. Moreover, the public policies that lead to these mechanisms of transitional justice have to be adopted in full consultation with the major stakeholders-the whole citizenry, and especially the victims of human rights abuses, the members of the communities that have borne the brunt of the oppression. Their participation, their consultation about their needs, is essential to a successful policy.

Transitional justice is no longer limited to the moment of transition from dictatorship to democracy or from conflict to peace. Many of these mechanisms are applied even during ongoing conflicts and much before a real transition to democracy can be envisioned. In some countries and communities, these principles and mechanisms are being adapted to offer redress for historical grievances that have affected successive generations. Because they are universal principles, we should be careful not to apply them only to moments of transition because the risk is that we won't recognize that the state has these obligations under all conditions and under every situation. Applying these principles only at the transitional moment tends only to lower the standards rather than heighten them, so it is very important to invoke these principles whenever they are applicable.

During ongoing conflict and for ongoing violations, the complications are much greater. In the cases of Darfur and Northern Uganda, we find ourselves having these debates among colleagues from human rights communities, conflict resolution communities, and humanitarian organizations delivering aid on the ground.

Peace and Justice

Unfortunately, these debates--as to whether peace should trump justice or justice is more important than peace--take place in this very simplistic yet urgent way. When confronted with questions like whether the International Criminal Court should withdraw the indictments of the Lord's Resistance Army leaders for the sake of peace in Northern Uganda, or whether the sitting head of the State of Sudan should be accused of genocide, we are asked to submit to blackmail without first putting the burden on the parties to the conflict to show that they are serious about peace. If we accept their blackmail, we won't be able to verify that they are not going to postpone forever the possibilities of justice for the sake of a peace that is not attainable or can be short-lived, because it leaves open wounds in the fabric of society.

Nevertheless, we in the human rights community have to recognize that the dilemma is there. Sometimes, it is a false dilemma and we should call it what it is. But in some conflicts--and I think the Northern Uganda conflict is one of them--the dilemma is very real. In such a case, we owe it to ourselves to insist on our principles, but also to be able to enter into a dialogue and recognize that there are urgent demands for peace that should be heeded as well. We must recognize that no one has the perfect solution and that using the language of trumping as if this were a poker game is really not the solution and actually does more harm than good.

I do not claim to have empirical evidence to show that a "just peace" (one that leaves room for redress of human rights violations) will always be durable. We certainly can, however, cite some examples where prosecuting perpetrators led to their exclusion from talks; for example, Karadzic and Mladic at the Dayton talks. Removing spoilers does sometimes result in peace. I stress, however, that we must pursue justice for its own sake. If it also leads to lasting peace, it will be because we fashion remedies and agreements at the bargaining table that attempt to satisfy both peace and justice. In contrast, if we use justice (e.g., the threat of ICC prosecutions) as a mere instrument of peace, we will undermine its value and probably fail at both justice and peace.