Contents:

1. INTRODUCTION

2. THE FLEXIBILITY OF INTERNATIONAL HUMAN RIGHTS LAW

3. MACHINERY FOR MONITORING

4. FIELD PRESENCES

5. COMBATING IMPUNITY

6. ADVISORY SERVICES AND TECHNICAL ASSISTANCE

7. CONCLUSIONS

1. Introduction

There are substantial variations in the kinds of situation we may be considering during this conference that could be characterised by the term "acute crisis". The archetypes are:

1. the highly repressive state

2. the state in civil war

3. the collapsed state.

The highly repressive state could be typified by Haiti before the military de facto government was overthrown; the civil war situation may be exemplified by that obtaining in Rwanda before the Rwanda Patriotic Front seized power; the collapsed state is illustrated by Liberia. There are various gradations between these three archetypes and a state may move from one to the other. For example, a repressive state may be the cause of discontent leading to civil war. Algeria at present may be held as an example. A civil war may so develop that there are no victors and the state is substantially weakened (Colombia?) or eventually collapses (Somalia).

International human rights law, like the very concept of human rights, presupposes the existence of a relatively stable government or at least an analogous locus of effective power exercising governmental-like functions, since that law essentially relates to the relationship between, on the one hand, those that exercise the governmental-type power and those over whom it is exercised.¹ By and large neither the law of human rights nor the notion of human rights is well adapted to dealing with the anarchy attendant on the generally collapsed state.

In civil wars or conflicts approaching civil war proportions international human rights law does play a role in purporting to regulate the way the state parties to the conflict treat those within their power. However, international humanitarian law is also applicable (to all parties) and may in some cases be better adapted to addressing the human rights aspects of the conflict.² Indeed, as far as the right to life is concerned, the International Court of Justice has opined that international humanitarian law supplies the relevant lex specidis.³

Where international human rights law clearly comes into its own is in the case of the repressive state where the problem is the existence of a government that does not respect human rights. It may be tempting to think of such situations as not being appropriately categorised as ones of acute crisis. However, the opposite may well be true. As a rule governments resort to repression when they feel weak and the more ferocious the repression, the weaker they are probably feeling. Accordingly, high levels of repression may well be seen as early warning indicators of a crisis that could lead to a sustained challenge and possible eventual downfall of the government in question, not least as a result of growing resistance to the repression.

2. The flexibility of international human rights law

It is often thought that international human rights law is the normative reflection of the reality of the modern stable western state. Desirable as some may think that may be, it is not the case. For example, while it encourages it does not require the abolition of the death penalty except as regards state parties to protocols to the International Covenant on Civil and Political Rights (the Covenant) and the European or Inter-American Conventions on Human Rights (ECHR and IACHR, respectively).⁴ It also recognises the problems faced by all states in the "real world". Thus a number of the rights envisage the possibility of restrictions being imposed for certain purposes. This is particularly true for the so-called fundamental freedoms, that is, the freedoms of religion or belief, expression and speech, and association and assembly, as well as the freedom of movement.⁵ For example, the European Commission of Human Rights concluded that the conviction of a well-known British pacifist and her two-year prison sentence (for distributing a leaflet held to be calculated to encourage collective desertion of duty by British soldiers at risk of being sent to Northern Ireland) did not violate article 10 (freedom of expression) of the European Convention on Human Rights, because of the ‘claw-back’ clauses relating to national security and the prevention of disaster.⁶ In addition it is possible in times of public emergency, generally accepted as including war, to derogate from or suspend the application of certain rights contained in international instruments.⁷ Taking another instance from the United Kingdom, the European Court of Human Rights considered that the problem of terrorism in Northern Ireland justified derogation from article 5 (liberty and security of person) of the Convention aimed at permitting administrative internment of suspected terrorists.⁸ Indeed, most rights contained in international treaties are subject to derogation or suspension in time of war or public emergency.

Of course governments are all too aware of the possibilities of restricting the scope of certain rights and derogating from them or other rights and I do not wish to suggest they are free virtually to tear up the rule book if they consider themselves under pressure. On the contrary, the limitations themselves are subject to limitations. The limitations in respect of the restrictions contained in the "claw-back" clauses to certain rights are such as that they have to be provided by for law and that they have to be "necessary" or even "necessary in a democratic society" and that they may only be resorted to for one of the stated purposes permitted for the restriction. For example, the right to freedom of expression may be restricted on grounds of ensuring respect to the rights and reputations of others and protecting national security, public order, or public health or morals, whereas a restriction on freedom of conscience may be for public safety, order, health or morals or the rights and freedoms of others, but not for national security.⁹

The limitations on derogations involve the following:

• certain rights are non-derogable, in particular, the right of non-discrimination solely on ground of race, colour, sex, language, religion or social origin; the prohibition of torture or other cruel inhuman or degrading treatment or punishment; the right of life; freedom from slavery; non-retroactivity of criminal law; and freedom of conscience;
• the state of emergency itself must threaten the life of the nation
• it must be officially proclaimed
• the measures taken must be strictly required by the exigencies of the situation
• the measures must not be inconsistent with the state’s other obligations under international law.¹⁰

All these are factors by which state action to limit the enjoyment of human rights may be assessed. In particular, the requirement of reviewing a measure of derogation by reference to the exigency of the situation introduces a notion of proportionality which is potentially far-reaching. It means not only that every suspension of a right or part of a right is reviewable, but also that even where a suspension may be justified, the particular measures relied on pursuant to the suspension may be deemed to be excessive. For example, in Aksoy v. Turkey¹¹ the European Court of Human Rights found Turkey to have violated ECHR Article 5, para 3 which requires a detained person to be brought promptly before a court, despite the fact that it had been duly suspended by notice of derogation submitted by the Government of Turkey. This was because the measures taken, namely, holding persons for four days or more without access to the outside world including a lawyer or a court was held to be too broad a cession to the power of the state. As far as the non-derogable rights are concerned, the substantial area of overlap between these and the "fundamental principles of international humanitarian law" as reflected in Article 3 common to the four Geneva Conventions should be noted.¹²

3. Machinery for monitoring

Where a state is a party to an international treaty that itself provides for a monitoring body then that body will be able to assess the compatibility of invoked restrictions or suspensions with the overall treaty obligations. This therefore would be the case, for example, with the Human Rights Committee as it discharges its functions under the International Covenant on Civil and Political Rights or the Committee Against Torture.¹³ Clearly their powers in this area tend to be limited as far as their common function is concerned, that is, reviewing periodic state reports submitted by the government of the country in question. Yet even this relatively mild technique of review of reports can lead to the Committees’ expressing certain clear views and creating substantial pressure on a government to take those views into account. Our own government has had to face criticism from the Committees in respect of its emergency measures applicable to the situation in Northern Ireland.¹⁴ While few cases have raised the issue, the Human Rights Committee would clearly be able to assess measures invoked by way of limitation or suspension of rights in cases it considers under the Optional Protocol of the Covenant providing for the right of individual petition. (A recent setback has been the first ever denunciation of the Optional Protocol by Jamaica, apparently because of the number of adverse Human Rights Committee findings in respect of death sentences after unfair trial or appeal procedures. This is certainly the case for the European Commission and Court of Human Rights established under the ECHR and for the Inter-American Commission and Court of Human Rights established under the ACHR.¹⁵

Of course, treaty bodies only have jurisdiction in respect of the states that are party to the treaties setting them up. However, all members of the United Nations are subject to the operation of a range of machinery that has evolved slowly from the mid-1960s to the present day. Thus a number of countries are subject to year-round scrutiny by special rapporteurs or representatives or experts established by the Commission on Human Rights to review the human rights situation in the country, often on the basis of visits to the country where the government in question agrees. The mandate holders report annually to the Commission on Human Rights and in numerous cases also on an interim basis to the General Assembly.¹⁶

However, some countries are politically or economically too powerful to be subjected to such machinery, that is to say, they can prevent (sometimes by threat of economic retaliation) the accumulation of sufficient votes in the inter-governmental Commission on Human Rights to adopt a resolution envisaging the creation of such bodies. It was in recognition of this reality that the Commission started creating thematic mechanisms which look at a particular problem but on a country-by-country basis.¹⁷ The first of these was the Working Group on Enforced or Involuntary Disappearances (1980), followed by the Special Rapporteur on Extrajudicial, Summary and Arbitrary executions (1982), the Special Rapporteur on Torture (1985) and the Special Rapporteur on Religious Intolerance (1986) and the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (1993). There have been several others but these are the ones that deal with violations of non-derogable rights.

Typically, the mechanisms receive information from various sources, primarily non-governmental organisations, transmitting urgent cases direct to the foreign ministries of the governments in question with a view to ensuring that the feared harm does not take place, transmitting substantiated information from similar sources to the government with a view to getting the governments’ comments, and reporting annually to the Commission on Human Rights on the exchange of information. For the last few years, the first three of these mechanisms have also concluded appropriate country entries with their own observations on the situation as regards their mandate. They also undertake missions to countries where they feel an on-site visit would be appropriate and the government is prepared to accept them and they report back to the Commission on Human Rights on those missions and their findings. While these can represent substantial pressure on a particular government they are ultimately as influential as the international community wishes them to be. For example, in 1993 the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions had visited Rwanda and made a number of recommendations which if acted upon could have at least made the genocide that took place there harder to carry out. The fact is, his report, a kind of early-warning signal, was ignored at the Commission.¹⁸

Another problem with the UN’s treaty bodies and non-treaty bodies is the dearth of resources available to the Office of the High Commissioner for Human Rights to support their work. Few of them have even one person working full-time on the mandates, even those that are world-wide. Ideally, those resources would be provided in the form of permanent staff. Short of that, more associate experts (formerly known as junior professional officers - JPOs) would be provided by governments on a temporary basis. Inevitably the burden falls on the traditional donor governments and this creates problems of geographic balance for the UN staff. One solution has been for the development agencies of those governments to fund JPOs from development-aid-receiving countries. While I am grateful that the UK’s Foreign and Commonwealth Office provides me with funds, through my University, to pay a modest stipend for a research assistant to support my work as Special Rapporteur on Torture and I recognise the substantial contribution the UK makes to peace operations, I venture to hope that the UK and other governments represented at this conference that have not yet done so could finance the recruitment of human rights JPOs to help professionalise and make more effective the UN’s human rights machinery.

4. Field presences

A recent interesting development that is the subject of a substantial monograph by Ian Martin is the introduction of human rights field presences, particularly of the United Nations, in certain situations of acute conflict.¹⁹ There is a wide variety of these, some occurring as part of the preparations for an eventual peace agreement, some pursuant to a peace agreement between the parties, some established by the international community in the wake of peace-keeping intervention or even a peace-enforcement intervention and some by special agreement between the High Commissioner for Human Rights and the country in question, either on its own or together with a Special Rapporteur. Some have been established by the Security Council, others by the General Assembly, others are of multi-organisational character involving both the UN and the OAS. The UN component could be organised in New York or in Geneva. Some have clearer mandates than others, some are more established than others, some are subject to secure funding, others to insecure funding. There is inconsistency in the method and channels for reporting, particularly at the public level. The less administratively or financially secure the operation, the less likely it will be for the personnel to be sufficiently organised and qualified to carry out the mandate with a high degree of professionalism. Nevertheless, there can be no substitute for an in-country presence as the most effective means of monitoring a human rights situation when the job is done properly and it is to be hoped that governments and the United Nations Secretariat learn from their varied experiences so that future operations are more soundly established than some of the earlier ones. Also, the experience of Somalia suggests the need for human rights monitoring of peace-keeping and peace-enforcement operations.

An especially promising innovation was the establishment in 1997 of a field office of the High Commission for Human Rights in the Colombian capital of Bogotà.²⁰ Its function is to monitor the human rights situation in a country where armed conflict and violent organised criminality presents serious challenges to the authorities; it is also mandated to assist in providing advisory services and technical assistance. However, it is financed by the European Commission which insisted that recruitment of the personnel would be undertaken by an activist NGO (the International Commission of Jurists), while the head would be appointed by the Government of Spain. Inappropriate though the ICJ’s role is in principle, there has been no substantial criticism of the staff. The even more inappropriate role for Spain unfortunately seems not to have been compensated for by comparable respect for the competence and commitment of the incumbent. Whatever problems there are with the UN’s recruitment systems, the European Commission’s cure, unwisely accepted by the former High Commissioner, seems to have been more harmful than the disease.

5. Combating impunity

All of the measures considered so far are ones that essentially rely on exposure or the threat of it to deter or at least limit serious human rights violations. However, some governments are either so unconcerned about international opinion or so desperate to retain power in the face of legitimate or illegitimate challenge that they will ignore such exposure if they think the stakes are sufficiently high. In other words, they carry on violating human rights often at a high level of criminality, for example, by resort to extrajudicial executions, torture, disappearances.²¹ To combat the impunity represented by these continuing violations the international community has begun belatedly to build on the experience of Nuremberg.²² In other words, it has sought to pierce the corporate veil of the state to reach out for the individuals responsible for the atrocities.

There have been two ad hoc tribunals established in this decade - the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. Both are the product of a failure of political will by the international community, in particular, the Security Council, to take more decisive, by which I mean military, action to stop the atrocities that were being committed in those countries. Nor has there been sufficient international commitment to ensure their effective functioning and more importantly the presence of key indicted suspects, though it is too early to make a balanced and informed assessment of the tribunals. For myself, I do not think the Yugoslav tribunal at any rate will be seen in retrospect to have been a failure.

However, there is something unappetising about establishing such tribunals on an ad hoc basis and after the fact to deal only with those situations in which the Security Council can muster the necessary majority to agree the operation. This has led to moves to draft a statute for a permanent international criminal court. The process is well underway and it may not be overly optimistic to envisage that it will adopted at the Diplomatic Conference this year as a fitting commemoration of the 50th anniversary of the adoption of the Universal Declaration of Human Rights in 1948. There are still numerous questions to be agreed, questions which could affect the effectiveness and even the legitimacy of the eventual court. Even if these are satisfactorily resolved, it will be a long time before all states are party to the statute, especially those states where the crimes within the Court’s jurisdiction are most likely to arise. It will also be difficult to ensure that those who should appear before it are in fact brought within its jurisdiction. Nevertheless it will be a symbol of possible retribution regardless of what de facto or de jure impunity the individual perpetrators of war crimes and crimes against humanity may enjoy at national level. It will also be a disincentive to international negotiators to be parties to so-called peace agreements which in return for an amnesty for the perpetrators of atrocities will get agreement to a spurious and possibly flawed short-lived peace in the country in question.

One way the individual members of the international community could contribute substantially to the process of restricting impunity would be by legislating to commit themselves to have criminal jurisdiction over the perpetrators of war crimes in non-international armed conflict and crimes against humanity as they do over torturers in respect of state parties to the Convention against Torture or as they do in respect of war criminals in international conflict under the Geneva Conventions of 12 August 1949. The adoption at the national level of the required legislation would be also a potential deterrent to potential perpetrators of war crimes and crimes against humanity.

6. Advisory Services and Technical Assistance

One usual contribution by the international community during the period of reconstruction after a situation of acute conflict, and this applies to the rebuilding of collapsed states, as well as other situations, is the provision of advisory services and technical assistance for the purposes of law reform and legal and human rights institution-building. This is at present an under-researched area. What is clear is that the efforts in question should be co-ordinated at the international level by those who are familiar with the norms and institutions of international human rights law. All too often donors are anxious to send in their own experts on their own systems to give advice and make suggestions sometimes without any regard to the internationally agreed norms and institutions. This is a recipe for future problems. It is also a means of seeming to give international legitimacy to the adoption of norms and institutions which may well be incompatible with the effective protection of human rights. The assisted states need neither the cultural insensitivity of being invited to import institutions that have no resonance in their domestic traditions nor advice on how to legislate more effectively for the implementation of traditional institutions, in the name of the cultural sensitivity, that would for example provide for people to be sentenced to cruel, inhuman and degrading punishment. There is also room for promoting training of peace-keepers and human rights field presences.

7. Conclusions

The main purpose of this presentation has been to set the international legal and institutional framework for addressing problems of human rights violations, with particular focus on situations of acute crisis. Little of it is relevant to the situation of the collapsed state before the phase of reconstruction. Much of it is relevant to other situations ranging from the repressive state to the states in various phases of internal conflict short of collapse. Most of it is subject to the co-operation of the state in question and only has the means of persuasion and exposure to encourage compliance.

Already at this stage a number of possible policy suggestions nevertheless emerge:

• encourage adherence to international human rights treaties and their optional interstate and individual complaints mechanisms, perhaps by offering humanitarian aid and trade incentives and discourage withdrawal from or non co-operation with such mechanisms by withholding such incentives
• discourage non-cooperation with the non-treaty bodies or the threat of use of economic and trade measures to avoid scrutiny by such bodies by withholding financial aid and trade incentives
• provide associate experts to work in the relevant sections of the Office of the High Commissioner for Human Rights (OHCHR)
• encourage states in crisis to agree the deployment of field offices of the OHCHR, again, perhaps, by offering financial trade and aid incentives and by helping put those presences on a secure financial footing
• monitor the human rights performance of peace-keeping and peace-enforcement operations
• promote adherence to the eventual statute of the proposed International Criminal Court, supported by the same incentives
• adopt and promote the adoption of legislation that would ensure that states can themselves take jurisdiction over crimes within the jurisdiction of the future court or the existing tribunals and would permit all necessary co-operation with those courts
• establish co-ordination among multilateral and bilateral donors in the field of advisory services and technical assistance, both to avoid duplication and to ensure that the services and assistance are properly adapted to local conditions and traditions and that they genuinely conform to international standards in the field
• provide training for field presences.