Failing to Protect: The UN and the Politicisation of Human Rights

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On 17th March 2008, I witnessed Mr Gibreil Hamid, a refugee from Darfur, addressing the United Nations Human Rights Council. Mr Hamid’s statement to the Council was brief. He mentioned three incidents within a conflict that had already claimed 200,000 lives and displaced two million people. Mr Hamid’s hands remained steady as he talked, but his eyes flickered nervously as he addressed people who were supposed to hold power to end such atrocities. Concisely and precisely, he told the Council how a report delivered earlier in the day demonstrated that ‘the Government of Sudan is violating human rights and international humanitarian law, with physical assaults, abductions and rape.’

He described how government forces rounded up and killed 48 civilians praying in a mosque in Muhajiriya; how, after government planes had dropped bombs on Habila, those same soldiers entered the village to steal animals, shoot inhabitants and set fire to the houses. He went on to recount that in West Darfur armed men had attacked a group of ten women and girls. A sixteen-year-old girl from the group had been gang raped, and at least three other women were whipped and beaten with axes. Police and other soldiers refused to intervene.

Nestled in the heart of the UN’s compound in Geneva, the Human Rights Council and its adjoining meeting rooms span three floors of a rather drab-looking building tucked away towards the back-end of the UN compound. The Serpentine Bar, next to the Council Chamber, allows delegates to sip their lattes while looking out across a stunning view of Lake Geneva. Government delegates, human rights activists and UN staff mill around the building during Council sessions. Many wander in and out of the Chamber itself, even when victims who may have travelled halfway across the world are delivering statements or entering into dialogues.

The meeting rooms around the Chamber are filled with formal meetings, bringing together government delegates, regional groups and political blocs, and with informal meetings organised by non-governmental organisations (NGOs). The atmosphere is relaxed, particularly amongst state representatives, with much of the ‘real’work being done behind the scenes prior to the Council’s official session. Diplomats and their teams keep to themselves, although the Serpentine Bar and the outdoor smoking areas are places where everyone intermingles. Even in those areas, however, the hierarchies remain obvious. The dress codes vary according to the individual’s role. The more expensive the clothes, the more likely it is that the delegate holds significant power. But power does not necessarily equate to knowledge or understanding of human rights. Indeed, the opposite often is true. The men and women holding power tend not to be based in Geneva, or if they are they tend not to attend Council sessions other than on days designated for top-level delegates. On the High Level Segment days, when ambassadors and other key state government officials attend the Council’s session, the clothes and briefcases in and around the Council signify money and importance. All too often, that is a signal that the individual has flown in for the occasion; knows little about human rights; and has required in-depth briefings from his or her human rights team the previous evening.

While Mr Hamid portrayed these events, delegates within the Council continued their conversations. People wandered around the Chamber, talking on mobile phones, rustling papers, or gathering up their belongings. The webcast of his statement shows people walking into and out of the row directly behind the speaker; the hum of voices accompanies Mr Hamid’s words.

This brave man, who had survived unspeakable atrocities, had made the long journey from Africa to Geneva to tell his story, to speak of the suffering of his people, to ‘tell the truth of what is happening’ in Darfur. Almost incredibly, his words were ignored by the very people in whom he had put his faith and hope. Government delegates, for whom human rights violations exist in numbers, in theory, in the abstract, simply ignored the man standing before them who had witnessed those horrors with his own eyes and whose words begged the world to stop the suffering of his people.

Mr Hamid’s message was clear. He asked ‘this Council to please stop praising Sudan for its “cooperation.” Mr President, attacking little girls is not “cooperation.”’ Later, at the very same session, Council members ignored the pleas of this survivor. The Council passed yet another resolution that called for the end to abuses in Darfur, but that also commended Sudan’s government for its efforts and called for it to receive further assistance and support. By ignoring Mr Hamid’s words, the Council was choosing to ignore every victim in Darfur.

 

The UN first discussed the horrors in Darfur in March 2003 thirteen months after the war began. Thirteen months that had seen deaths, rapes, burning villages, beatings and displacements. Thirteen months of ‘business as usual’ at the UN, with no formal discussion about the atrocities in Darfur. Thirteen months after the Organisation first discussed the situation in Darfur, the UN Humanitarian Coordinator for Sudan Mukesh Kapila said that attacks against civilians were ‘close to ethnic cleansing’. He claimed that ‘the only difference between Rwanda [1994] and Darfur is the numbers involved of dead, tortured and raped.’ The following month, UN Secretary General Kofi Annan insisted that ‘…the international community cannot stand idle [but] must be prepared to take swift and appropriate action. By ‘action’ … I mean a continuum of steps, which may include military action’.

That action never materialised.

In the three years between 2004 and 2007, the UN Security Council passed 20 resolutions on Darfur. Some set up UN missions and others called for a peace agreement. None set out concrete steps for protecting individuals from rape, displacement, beatings or death. They were all passed unanimously. The same cannot be said of the resolutions that blamed Sudan’s government; or threatened to impose sanctions; or took action such as imposing travel bans, asset freezing, and preventing the sale of military equipment; or referred Sudan to the International Criminal Court. Set against the individual and collective suffering in Darfur, those resolutions were hardly robust; but they were nevertheless contentious, with Algeria, Brazil, China, Pakistan and Russia abstaining during the votes.

Sudan had powerful allies in China and Russia, who both hold veto powers at the Security Council. China and Russia were also supplying weapons to Sudan’s government. Sudan was also protected by its regional allies in Africa and its political allies in the Organisation of Islamic Cooperation (OIC). The African Group and the OIC ensured that criticism of Sudan’s government was muted at the Human Rights Council and lacked unanimity at the Security Council. Not only did the UN fail to protect individuals in Darfur, the efforts of some of its major constituents ensured that those violations were able to continue.

The UN is failing to protect people from grave human rights abuses. It is failing to deal with the conflicts that give rise to wide scale atrocities. But why is it failing to confront these horrors? Although the UN may protect some human rights in some situations, there are vastly more failures than successes. This book explores what is possible in law, what is possible politically, and why the UN is failing to protect human rights.

Many books by eye-witnesses, victims, child soldiers, and activists detail individual and collective suffering. I am not well-placed to tell those stories, nor are they my stories to tell. I was not there. I did not experience abuses nor bear witness to atrocities. Each story is one of unbearable anguish. But each story is a personal account that cannot go beyond its own particular conflict and context. My aim in this book is to tell a different story: the story of why the international community allows conflicts to continue and human rights to be violated. It is a story of UN inaction.

 

This excerpt is the Prologue from Rosa Freedman’s new book, Failing to Protect: The UN and the Politicisation of Human Rights. The book was launched in May 2014 at an event jointly hosted by Berwin Leighton Paisner solicitors and the UK Human Rights Blog.

UPR and Israel

The United Nations Human Rights Council is conducting the second cycle of its Universal Periodic Review mechanism. In January this year, Israel became the first country to refuse to attend its review session. That decision has been a diplomatic disaster. The Council has rescheduled the review for Tuesday 29th October. The question now is whether or not Israel will send a delegate to participate in this rescheduled session. So far, during the mechanism’s first two cycles, every single UN member state has attended its own review session. Every country, that is, except for Israel. The UPR relies upon universality – meaning that any country that pulls out can topple the house of cards. If Israel does not send someone – anyone – then its non-participation will both weaken the UPR and that country’s standing in the eyes of all of its peers.

In May 2012, Israel sent a letter stating that it would no longer engage with the Human Rights Council. During the Council’s first five years, its excessive scrutiny of and disproportionate attention to Israel had undermined the body’s credibility. There is no doubt that the Council is biased, selective and politicised in its treatment of Israel. But that country’s stance has widely been criticised by both its friends and foes. Non-participation not only sends a strong political and diplomatic message to those that criticise Israel, it also removes the possibility of that country presenting its position to the very many states who neither take a side nor have an interest in the conflict occurring within the Occupied Palestinian Territories. Failure to be present during discussions leaves those neutral, or disinterested, states only hearing one side of the debate.

But Israel’s decision not to participate in the Universal Periodic Review is far more serious than its disengagement from Council sessions. The UPR is a universal mechanism created as part of the reform process that disbanded the Commission on Human Rights and replaced that body with the Human Rights Council. UPR is an innovative mechanism that scrutinises every country’s human rights record during a four year cycle. The mechanism is a peer-review conducted by states, with input from UN independent experts, NGOs, national human rights institutions and other civil society actors. The reviews seek to provide transparency, accountability and scrutiny of national human rights records. Recommendations are then provided to the country concerned in order to strengthen and improve the realisation of human rights within their territories. Continue reading

Haiti Cholera Claims: Absolute Immunity vs Human Rights

On Monday, the United Nations formally declined to award compensation to individuals in Haiti who were affected by a cholera outbreak that began in October 2010. The UN failed to screen its peacekeepers for the disease prior to them entering into Haiti. Nepalese troops brought the disease into Haiti, a country that had not been affected by cholera for over 50 years. Poor waste management at the UN peacekeepers’ camp resulted in infected human faeces being deposited in a tributary that feeds into Haiti’s main river. Within the first 30 days, Haitian authorities recorded almost 2,000 deaths from cholera. In July 2011, the epidemic infected at a pace of one person every minute. The impact of the cholera outbreak has been devastating. Almost three years on from the outbreak, the country is still struggling to rid itself of the disease.

The UN does not dispute that its peacekeepers brought cholera into Haiti. Nor does it seek to absolve itself of blame for the conditions within the peacekeepers’ camp. The UN is seeking to avoid compensating victims of the cholera outbreak. Secretary-General Ban Ki-Moon has once again pointed to the Organisation’s absolute immunity from jurisdiction as a bar to individuals bringing claims against the UN. In the formal letter setting out the UN’s position, Ban Ki-Moon repeatedly points to the UN’s actions in Haiti since the outbreak. Rather than focusing on the fact that the UN is responsible for the cholera, he praises the Organisation’s efforts to contain and eradicate the disease. He makes clear, however, that compensation for individuals is not part of the clean-up package.

Lawyers acting on behalf of 5,000 victims called the UN’s response an ‘outrage’.

Throughout these victims’ struggle to seek justice, the UN has relied upon its absolute immunity from jurisdiction. That immunity traditionally is based on Article 105(1) of the Charter of the United Nations and on Section 2 of the Convention on Privileges and Immunities of the United Nations (CPIUN). However, such immunity violates the fundamental rights of individuals to access a court and to seek a remedy. As such, a counter-balance exists through the UN being required to provide alternative mechanisms for resolving disputes. Section 29 of the CPIUN and the Model Status of Forces Agreement both mandate that the UN set up local claims boards within any peacekeeping operation. Those claims boards are designed for individuals involved in a dispute with the UN or its staff. They allow such individuals to realise their rights to access a court and to seek a remedy despite the UN’s absolute immunity.

Alternative mechanisms for resolving disputes have not helped the 5,000 individuals affected by the cholera outbreak in Haiti. The UN insists that the cases issued on those victims’ behalf are not ‘receivable’ because they address ‘political’ or ‘policy’ matters rather than being private law claims. Therefore, the individuals concerned are denied an alternative dispute resolution mechanism that is supposed to counterbalance the UN’s immunity. Essentially, they are being denied their fundamental rights to access a court and to seek a remedy.

This simply is not good enough. Two months ago, lawyers for the victims issued an ultimatum demanding that the UN provide compensation to the victims within 60 days. Otherwise, the lawyers promised, they would bring a human rights-based challenge to the UN’s absolute immunity. Yesterday’s announcement by UN Secretary-General Ban Ki Moon sets the scene for that challenge to be made.

National courts have long-understood the United Nations to have absolute immunity from their jurisdiction. State immunity has evolved over recent decades, allowing restrictive immunity that distinguishes between acts jure imperii and those jure gestionis. A question remains about whether that doctrine applies to international organisations. Case law from various courts and jurisdictions shows that the UN’s absolute immunity has been challenged, albeit unsuccessfully on the facts of each case. The basis for those challenges have been that the bar to jurisdiction violates claimants’ rights to access a court and to a remedy. In all of the cases so far, the individuals’ ability to access alternative mechanisms for dispute resolution has been used to demonstrate that their rights have been realised. The difference for the 5,000 individuals from Haiti is that there is no alternative mechanism for resolving their dispute. This leaves those individuals with their fundamental rights being violated.

By invoking absolute immunity, the UN has either ignored or missed the point that all individuals have rights to access a court and a remedy. Those rights are being denied by the UN’s absolute immunity coupled together with its refusal to hear those claims within its own tribunals. The Organisation that created the modern system of international human rights law, and that is tasked with protecting and promoting those rights, is denying fundamental rights to these 5,000 individuals from Haiti. By failing to provide compensation to the victims of cholera in Haiti, the door has been opened for a successful human rights-based challenge to the UN’s absolute immunity – one that may have far-reaching implications and one that is long overdue.

The United Nations Human Rights Council’s Backwards Step on LGBT Rights

Last week, South Africagay flag quietly announced that it will not table a resolution on Lesbian Gay Bisexual and Transgender rights at the United Nations Human Rights Council’s 23rd Session. There had been significant expectation from states and civil society that the resolution would be discussed at the session, which is currently taking place in Geneva. The announcement is disappointing and demonstrates a step backwards in the fight for universal protection and promotion of sexual orientation and gender identity rights.  At present, we can only speculate about the reasons for South Africa’s decision, although a brief exploration of the history and politics over recent years will lead us to make some educated guesses.

The majority of states across the world do not recognise sexual orientation and gender rights. Positive steps taken towards equal marriage in France, some US states and the UK are drowned out by the criminalisation of homosexual acts across almost all African and Islamic countries. In those and other areas, there remains systematic oppression of, and discrimination against, sexual and gender minorities. Those violations are based on a person’s acts, identities, or both. Many of those states are the ones seeking to ensure that LGBT rights are not recognised as human rights.

The UN Human Rights Council is a politicised body. Dominant regional groups and political blocs use their collective weight to promote common objectives. The Organisation of Islamic Cooperation (OIC) clearly aims to ensure that sexual orientation and gender identity rights are not enshrined in international human rights law. The African Group, with a few notable exceptions, takes a similar stance. Events over the past decade demonstrate those states’ insistence that LGBT persons remain an unprotected minority group.

In 2003, Brazil sought to advance LGBT rights by tabling a resolution at the UN Commission on Human Rights. The OIC used various tactics to ensure that the resolution was deferred. Two years later, New Zealand’s statement in favour of sexual orientation rights was supported by 32 countries. In 2006, the Special Rapporteur on Extrajudicial, Summary and Arbitrary Killings highlighted persecution of LGBT persons. The Commission did nothing. Continue reading

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