Human Rights Promotion & Protection: Key Debates & Implementation Challenges
This section presents a summary of some of the key debates and implementation challenges discussed by academics and practitioners in relation to human rights promotion and protection in peacebuilding processes. The points relate to the following sets of issues: universalism versus cultural relativism of human rights; human rights versus conflict resolution; "conflict sensitivity" in the promotion of human rights; the enforcement versus institution-building approach; and the potentially competing agendas and interests between insiders and outsiders.
1 The prevalence of this debate is understandable in view of the context in which human rights emerged as an explicit category in the Age of the Enlightenment (18th century) in the West, and the conditions in which the modern international human rights regime developed after WWII. This is also intimately tied to the role of international law itself which developed as a "byproduct" of the modern bureaucratic state.2 As a consequence, debates and at times conflicts have emerged between what may be perceived by some as a very Western oriented approach and other conceptions of humanity and law.
Go to A brief history of human rights
The universalist perspectiveAdvocates of the universalist vision of human rights stress that the regime today remains "the only proven effective means to assure human dignity in societies dominated by markets and states. Although historically contingent and relative, this functional universality fully merits the label universal--for us, today."3 This argument commonly refers to the "functional universality" of human rights, and is based on the fact that human rights provide attractive remedies for some of the most pressing systemic threats to human dignity for a growing number of people of all cultures in all regions. "Whatever our other problems, we all must deal with market economies and bureaucratic states. Whatever our other religious, moral, legal, and political resources, we all need equal and inalienable universal human rights to protect us from those threats."4 While part of the literature stresses the importance of this functionalist argument as both international law in general and human rights in particular may not have normative legitimacy in parts of the world,5 some authors also emphasize a more normative view: "the broad acceptance by many nations across the globe of the principal human rights treaties can be taken, at least on the legal level if not yet in practice, as a triumph of universalism over relativism."6
The cultural relativist perspectiveCultural relativism has been used frequently as an argument against the universality of human rights. Two main elements lie at the core of this school of thought: the fear of (neo)imperialism and the desire to demonstrate cultural respect.7 The history of the notion of human rights, the tendency to concentrate, in practice, more on individual and political rights than on collective as well as economic, social and cultural rights, and the international political context in which human rights are most often situated, explain and at times may support the perception that their universality is not such a given. "Cultural relativists, in their most aggressive conceptual stance, argue that no human rights are absolutes, that the principles that one may use for judging behavior are relative to the society in which one is raised, that there is infinite cultural variability, and that all cultures are morally equal or valid."8 Western anthropologists and sociologists themselves have in part supported that view, combating a posture inherited from colonialization and its implications of superiority on the part of the West keeping extending and imposing its culture to the rest of the world. In that perspective, all cultures are morally equal and, as a consequence, no value can claim to be superior.
The state of the debate: beyond a dichotomous presentation of the issue of universalityIn response to the cultural relativist position, those who argue in favor of at least the "relative universality" of human rights would note that "no culture or comprehensive doctrine is 'by nature,' or in any given or fixed way, either compatible or incompatible with human rights."9 They note that "there is a universal cultural receptivity to such fundamental rights as freedom from torture, slavery, arbitrary execution, due process of law, and freedom to travel."10 However, some scholars, in particular among specialists of the Islamic law, have critiqued this approach that generally argues "neutrality" towards local cultures. They feel that such thinking underestimates areas of substantive and procedural conflict between international human rights law and Shari'a law and, in fine, plays against human rights.11
Another key dimension of the debate is the way one looks at "cultures" and "traditions." Proponents of universalism denounce a position that they call "cultural absolutism." "Cultural relativists tend to look at cultures from a static, romanticized perspective in which traditional societies are defined as unchanging, holistic entities, unaffected by human history or the dynamics of cultural change."12 This debate is closely related to the one about understanding the ambiguities of "tradition" when dealing with the role of traditional and informal justice systems in peacebuilding.
Another set of arguments notes that the relativist claim is often used by repressive regimes or rulers to justify their ruling practices. "Thus, rulers use cultural relativist arguments to justify limitations on speech, subjugation of women, female genital mutilation, amputation of limbs and other cruel punishment, arbitrary use of power, and other violations of international human rights conventions. It is no wonder that the doctrine that human rights are contingent on cultural practice has been called the 'gift of cultural relativists to tyrants.'"13
Over the past decade, most discussions have tried to move beyond a dichotomous presentation of the issue of universality. "Most sophisticated defenders of both universality and relativity today recognize the dangers of an extreme commitment and acknowledge at least some attractions and insights in the positions of their critics and opponents."14
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The "human rights versus conflict resolution" debate is perhaps the most discussed and well-known one in the fields of human rights, conflict resolution, and peacebuilding. It echoes the overarching "peace versus justice" debate, which is very similar to the "order versus justice" debate,15 which has important policy implications for the peace negotiations stage of conflict resolution.
Shared concerns and goals but different prioritiesConflict management practitioners generally prioritize peace as the basis for justice, arguing that the cessation of violence and the resolution of intra-state conflict is a precondition for the establishment of a viable and enduring system of justice. They usually accept that securing peace may necessitate negotiating with parties responsible for atrocities, because without them a peace agreement would be difficult to implement. According to many conflict resolution specialists, only after the violence has stopped can there be any possibility of promoting and protecting human rights--hostilities must cease before peace with justice can become a viable objective.16 In other words, those who subscribe to this view are willing to sacrifice some measure of justice in the short-term in order to ensure the consolidation of peace (and justice) in the long run.
Human rights actors, on the other hand, focus more directly on justice as the foundation for a lasting peace. They are primarily concerned with addressing past human rights violations and holding perpetrators accountable, restoring the rule of law, and building democratic institutions. Accountability is seen as a key goal in the peacebuilding process because it challenges the previous culture of impunity and guarantees that the post-conflict society is based on legitimate foundations. Proponents of the human rights perspective also make a conflict prevention argument, saying that if the injustices (human rights violations) of the past are not properly addressed, peoples grievances may eventually give rise to new waves of violent conflict. As practitioners engaged in national human rights institutions stress, "it is clear from the experience of several countries that if human rights issues are not identified and dealt with at an early stage, concerns relating to accountability and impunity will surface later in the peace process and can result in a return to conflict. Offering amnesty for example, can allow instant relief and the reduction in tension necessary to facilitate dialogue but it will not solve human rights issues in the long term."17
While many conflict resolution practitioners share these concerns, the two fields often differ on the relative priority and importance attached to the various imperatives. Indeed, it is generally recognized that both human rights and conflict resolution practitioners share the same goals. "In the short run, both sets of practitioners seek to end violence, limit loss of life, and minimize other suffering as quickly as possible. In the long run, both sets of practitioners try to assist societies in taking steps to ensure that the violence does not recur and that the rights of every human being are respected."18 However, their strategies and priorities may differ, creating concrete contradictions and actual oppositions in the management of actual situations. As some have suggested, "the functional dependence of human rights protection on the absence of war means that it is unreasonable to demand, as many from the international human rights movement voice, that when human rights and political expediency require different courses of action, human rights considerations should be automatically accorded precedence."19
Different underlying assumptions and values
Human rights practitioners and conflict resolution practitioners also have different underlying assumptions, particularly in terms of whether human rights violations are either symptoms or causes of violent conflict. "If human rights violations are viewed merely as a symptom of conflict, the primary objective of the international community should be to put an end to violence and protect people from further abuses, thus creating 'negative peace,' that is, the absence of violent conflict. International humanitarian law is an important instrument for negative peace, because it seeks to limit the excesses of war and protect civilians and other vulnerable groups. On the other hand, if human rights violations are viewed as causing violent conflict, the main objective of the international community should be to transform the structural and systemic conditions that give rise to violence. This perspective seeks to achieve more than the mere absence of war, working toward 'positive peace' via the long-term process of transforming attitudes and institutions to create and sustain a society that is both peaceful and just. Reality, however, is rarely so clear-cut...the relationship between human rights and conflict is complex and shifting, demanding policies, actions, and solutions that integrate both negative and positive peace."20 This explains the growing consensus recognizing human rights violations both as causes and symptoms of violent conflict and therefore require multiple approaches. Go to Human rights and violent conflict
Human rights and conflict management practitioners also emphasize different values in their approaches. "Human rights actors are generally concerned with the application of objective standards to determine issues of justice and establish the extent to which parties have upheld or violated such standards. Conflict management practitioners, on the other hand, seek to reconcile the needs, interests, and concerns of disputant parties in a constructive way, rather than trying to determine who is right and who is wrong."21 This fundamental difference in perspective creates certain tensions between the two fields. The normative orientation of human rights actors also means that they may attribute blame, whereas conflict management practitioners usually refrain from judging disputing parties. "In addition, human rights actors can be strict or rigid in their endeavors to uphold and abide by human rights norms, whereas conflict management practitioners are more flexible in their search for a resolution that meets the needs and interests of different parties."22
Toward complementarity and mutual learningIn the end, most practitioners and scholars alike advocate the adoption of a holistic and comprehensive approach integrating insights, methods and values from both fields, as they are far more complementary than contradictory. "Insufficient recognition of the close relationship between human rights and conflict management is detrimental to the objectives pursued by both fields. Peace and justice are inextricably linked. The absence of justice generally leads to an absence of peace. Thus, the fields of human rights and conflict management are inextricably linked."25 As some have suggested, both mediators and human rights advocates should then "use more humility and less arrogance,"26 and accept to learn from each other. "Collaboration or at least mutual appreciation is certainly possible, and one should hope that it increases as we gain more knowledge about how to make our interventions more effective."27
Michelle Parlevliet, an academic-practitioner specializing in human rights and conflict resolution, has suggested a few areas of mutual learning: "Human rights actors generally have a strong need to develop their capacity to deal with conflict in a constructive manner while undertaking activities towards rights protection and promotion. For them, it is important to learn how communication skills, negotiation, problem-solving, and facilitation can strengthen their work. Building their understanding of interest-based conflict resolution also enables them to frame human rights issues in terms of the interests of parties and to assess on a case-by-case basis whether litigation or mediation would be most suitable in a particular situation. The needs of conflict management practitioners, on the other hand, relate more to developing an understanding of the meaning and value of human rights for their work, and identifying human rights aspects in conflicts. They need to be familiar with the constitutional and legislative frameworks, and must be able to conduct their interventions in line with the human rights instruments relevant to the context in which they operate."28
The Peace vs. Justice Debate
"We also know that there cannot be real peace without justice.Yet the relentless pursuit of justice may sometimes be an obstacle to peace. If we insist, at all times, and in all places, on punishing those who are guilty of extreme violations of human rights, it may be difficult, or even impossible, to stop the bloodshed and save innocent civilians. If we always and everywhere insist on uncompromising standards of justice, a delicate peace may not survive.
But equally, if we ignore the demands of justice simply to secure agreement, the foundations of that agreement will be fragile, and we will set bad precedents.There are no easy answers to such moral, legal and philosophical dilemmas."
Source: Secretary-General of the United Nations, Press Release. Secretary-General Expresses Hope for New Security Council Commitment to Place Justice, Rule of Law at Heart of Efforts to Rebuild War-Torn Countries. UN Doc. SG/SM/8892, SC/7881, 25 September 2003.
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For instance, "efforts to compel state security institutions, such as prisons, and to be more respectful of human rights may involve engaging with actors who may be defensive, dismissive or hostile towards human rights commission staff, whom they may perceive as undermining their powers and usurping their responsibilities...Moreover, advocation of the rights of marginalised or disadvantaged groups has the potential to threaten the status quo, and may challenge entrenched notions of superiority and inferiority as well as traditional power relations."29 The realization of women's rights in traditionally patriarchal societies constitutes a prime example in this regard. "Other aspects of the rights/conflict relationship include the possibility that conflict may arise over different interpretations of one single human right and in situations where different rights have to be balanced against one another. Moreover, when expectations about the realisation of rights are not met, this can give rise to conflict."30
Many human rights issues are, indeed, highly contentious and as such conflict-loaded, because of the extent to which they touch on peoples beliefs and value systems. Therefore, some practitioners have suggested adopting the notion of "conflict sensitivity," which is now prevalent in the field of development studies. "In development, 'conflict sensitivity' requires an informed understanding of the context in which development interventions take place, with a view to minimising negative impacts on the target community and maximising positive ones.
In relation to national human rights institutions, the concept can be understood as referring to the imperative for national institutions to achieve an in-depth understanding of the context in which their interventions will take place (including whether human rights violations may be causes or consequences of existing conflict), to anticipate the possible negative ramifications of these interventions, and to consider possible strategies for addressing these."31
[Back to Top] 32 A number of authors stress the significance of methods such as institution-building, standard-setting, and human rights education in post-conflict environments. They also suggest that "an approach geared towards problem-solving and constructive engagement with existing institutions and state agencies may be more relevant than one inclined towards exposure and denunciation."33
The limits of the enforcement approachThe practice of major international human rights NGOs has been criticized in this regard, in particular their "apparent failure...to recognize that effective promotion and protection of human rights early in postconflict settings requires different tactics than those typically applied in response to human rights abuses occurring in stable societies with established governments. In the latter situation, IHROs have achieved positive results by calling international attention to gross shortfalls between human rights ideals embodied in international legal instruments, and the actual practice of governments in order to prompt corrective action to enforce those international standards. The specific IHRO tactics referred to include gathering and publicizing information about human rights violations, expressing formal protest to violator governments by mechanisms within the United Nations and regional structures, and lobbying outside governments to pressure the violator to comply with international standards. Where possible, many IHROs have also advocated using the justice system to enforce individual accountability and redress for violations."34
This approach (based on a set of legal and political tools and tactics) is sometimes referred as the "enforcement approach" to human rights protection.35 However, effective use of the enforcement approach presupposes the existence of an entire set of functioning institutions to investigate, prosecute, and punish individuals who commit human rights violations. In societies emerging from civil wars, such institutions are normally weak or nonexistent, if indeed they existed beforehand. "Institutions must be built before they can function: police, advocates, and judges must be trained in due process before they can administer due process; members of the public must understand their rights as individuals, as well as the system designed to protect those rights, before they can begin to exercise them."36
Achieving anything approaching such compliance in a relatively short term is feasible only if outsiders are in charge, as an occupying force or a transitional authority, assuming responsibility for day-to-day practices. But experiences have proven the limits of this option as it creates its own set of problems and may actually hinder the development of a domestic capacity to protect human rights.37 In other cases, progress is often slow and can occur only if a strong emphasis is put on the building of an institutional framework able to respond to human rights violations and prevent them, and an education effort towards all segments of the society. Otherwise, "even the most stringent international advocacy in support of enforcement will have few direct repercussions for either perpetrators or victims."38
For that reason, it has been suggested that human rights NGOs "balance a sensitivity for the fragility of postconflict political settings against the impetus to react forcefully against all forms of human rights violations using familiar enforcement tactics--that is, tactics developed to extract compliance from stable, established governments."39 In other words, some argue that NGOs should do away with their "adversarial ethos" and move beyond merely "naming and shaming"; they should help improve situations, using more flexible, consultative approaches and constructive engagement.40 This may mean that NGOs would be more measured in their criticisms of the short- and even medium-term failures or shortcomings of post-conflict institutions, and should work more collaboratively with the government, something some human rights activists may consider "heresy."41 This tension is present in most situations, including among outsiders themselves, for instance in the workings of peace operations.42
The situation of national human rights institutions offers another illustration of that dilemma. NHRIs often have to function in situations where other state institutions do not function properly or at all. "Investigating complaints of human rights violations, making recommendations to authorities, assisting victims in seeking redress and referring cases to court makes especially sense when other state institutions are relatively functional and can play their part. This then is a paradox of the post-settlement context: where this functionality does not exist, national institutions may be particularly valuable and useful yet are also hindered in delivering on (aspects of) their mandate."43 Furthermore, their warnings against human rights violations may be perceived as excessive criticism if not actual threats for institutions which are trying to improve their record.
The evolution towards a diagnostic approachThere has been significant evolution in the recent practice. Most UN and OSCE (Organization for Security and Cooperation in Europe) human rights field operations now adopt a diagnostic approach: they monitor and identify human rights problems, propose solutions, work with the government and civil society to foster institutional reform and societal change. Human rights field operations denounce the government only as a measure of last resort in cases where the government blocks reforms or the work of the human rights field operation, or denies the existence of human rights problems. 44
In that perspective, the seeming dichotomy between enforcement and institution-building is dissolving, mainly because institution-building depends on good monitoring and information regarding the human rights situation in the country. Follow-up monitoring activities are also important to ensure that reforms are on track and take hold. Human rights monitors may not go public as often in their reporting, but may want to keep this option because, if the human rights conditions improve, it is important to note this publicly.45
This evolution is based on the notion of progressive improvement which is crucial in the early stages of a post-conflict peacebuilding process. While institutions may perform poorly at first, they can (and, in some cases, do) improve overtime. One key factor in that process is to manage public expectations. The public should not expect dramatic change overnight, but rather gradual improvement.
A relative knowledge deficit
These difficulties are also rooted in uncertainty about the best way to build sustainable national human rights protection systems. "While the ideal conditions for promoting and protecting human rights are fairly evident, how we create them is not; we almost need to reinvent the wheel everywhere we go."46 The only consistent pattern seems to be that "change will only come from human rights actors within a society; attempts to impose change from the outside will inevitably fail"47--an argument also in support of an institution-building approach. It is important to note that this knowledge deficit is not unique to the human rights sector; it is also present in judicial and legal reform/reconstruction programs. As for other aspects of peacebuilding, it is progressively reduced as important good practices are now known and better understood. 48 Go to the Judicial & Legal Reform/(Re)construction - knowledge gap
The relationships between insiders and outsiders may at times be complicated on the human rights agenda. In particular, UN and international NGOs may convey a system of norms and values that is in part at odds with the local one. Local political actors often play a very ambiguous game in that respect as they can easily manipulate that thematic. But the situation of local human rights NGOs is also critical. Indeed, "the reference to an international discourse forms the basis of their legitimacy, particularly vis-à-vis the 'international community.' It may also allow them to maintain a certain distance from theincumbent power, going so far as to protect themselves from it."49 The clientelist relationship that may characterize their link with outsiders is also of importance as it may at times orient some of them more to the outside world than to their fellow citizens.50 The NHRIs themselves may find themselves in a similar position. "A close association with international actors may also open the institution up to claims or accusations by powerful national actors that it is pursuing a foreign, imperialist agenda."51 A large part of this dilemma is inherent to the insider-outsider dialectic and to the ambiguities associated with the larger peacebuilding agenda, in particular in the efforts to support local civil societies. The specific political challenges associated with the human rights agenda simply tend to reinforce them.
Link to ownership (cross-cutting challenges; forthcoming)