Human Rights Promotion & Protection: Human Rights & Peacebuilding Processes
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This section frames the question of human rights in relation with violent conflicts and peacebuilding processes. There is a general consensus that human rights violations are both symptoms and causes of violent conflict; however, the emphasis on one of these understandings may lead to different approaches and outputs. This section also addresses the question of the inclusion of human rights in negotiated peace and the intersection between human rights and the different dimensions of the peacebuilding process, with a specific emphasis on other components of the justice and rule of law agenda.Human rights and violent conflictThere is a general consensus that human rights violations are both symptoms and causes of violent conflict. "Violent and destructive conflict can lead to gross human rights violations, but can also result from a sustained denial of rights over a period of time."1Human rights violations as symptoms of violent conflictThe symptomatic nature of human rights violations is well known.2 Assaults on the fundamental right to life are widespread - indiscriminate attacks on civilians, executions of prisoners, starvation of entire populations, massacres, and even genocide. Torture is common in internal conflicts, as are measures restricting peoples freedom of movement. Women and girls are raped by soldiers and forced into prostitution, and children are abducted to serve as soldiers. Tens of thousands of people detained in connection with conflicts "disappear" each year, usually killed and buried in secret. Thousands of others are arbitrarily imprisoned and never brought to trial or are subject to grossly unfair procedures. But other fundamental rights are also denied: the destruction of homes, schools and hospitals; attacks against relief convoys; the destruction of crops; the impossibility to work, travel and have access to food; the destruction of important cultural sites and symbols. Roughly 26 million people have also been forced to leave their homes due to violent conflict, becoming refugees and internally displaced persons (IDPs).3 "Armed conflicts clearly illustrate the indivisibility and interdependence of all human rights. The collapse of infrastructure and civic institutions undermines the range of civil, economic, political and social rights."4Human rights violations as causes of violent conflictStructural violence and denial of human rights also contribute to the emergence of most violent conflicts. "Numerous conflicts have been caused by human rights issues such as limited political participation, the quest for self-determination, limited access to resources, exploitation, forced acculturation, and discrimination."5 It is important to note here that denial of human rights occurs not only as a result of "active violations" (which can be defined as explicit, direct and intentional actions by the State and its agents), but also as a result of "passive violations" (which can be defined as those violations resulting of the negligence or inability of the State to protect the rights of its citizens, especially in the socio-economic domain; passive violations can contribute to the deepening of societal cleavages and conflicts, and thus can lead to the emergence or escalation of violent conflict).6It is important to note that causal links are difficult to pin down. Empirical scholarship, including many statistical studies, suggests that civil war often entails increased levels of human rights abuse. But the reverse is much less documented by research. Conflict is typically investigated by social scientists, while human rights violations are more frequently analyzed by lawyers and activists. The two groups use different theoretical and methodological tools, and engage in very little cross-disciplinary dialogue. A recent study surveyed prominent social scientific studies of internal conflict and civil wars and translated their findings into human rights language, asking, "Do human rights violations contribute to conflict?" More specifically, the authors tried to assess if the risk factors identified by social scientists could also be recognized as human rights abuses. They conclude that "violations of civil and political rights appear more obviously associated with conflict than abuses of economic and social rights, but the latter seem to play a facilitating role. Discrimination and violations of social and economic rights function as underlying causes, creating the grievances and group identities that may, under some circumstances, motivate civil violence. Violations of civil and political rights are more clearly identifiable as direct conflict triggers."7 Recent studies by those developing early warning indicators for the prevention of genocide have also highlighted important factors to that respect. 8 Another crucial dimension in the nexus between human rights violations and violent conflict is the role played by collective identities, such as ethnicity, race, and religion. A combination of socio-economic inequalities aligning with ethnic stratification and of political elites manipulating ethnic relations for particular ends often leads to instances of lethal violence between ethnic groups, and thus to systematic and massive human rights violations, such as ethnic cleansing and genocide. In an ethnically divided society, symptoms of a potentially violent conflict include the dominance of a particular ethnic group in state institutions (such as the judiciary or the police), as well as radio programs or other media that encourage ethnic division and hatred. 9
Two understandings leading to different approaches and outputsThe distinction between human rights violations as symptoms or causes of a violent conflict is not merely theoretical. Indeed, it reflects distinct analytical lenses that hold potentially different policy implications. "For both human rights actors and conflict management practitioners, it matters whether gross human rights violations resulting from conflict is the main concern, or whether the focus is on conflict resulting from a denial of human rights. The problems to be addressed are different and so are the desired outcomes."10If human rights violations are first perceived as symptoms of conflict, the primary objective is to protect people from further abuses, to limit the excesses of war, and to protect civilians and other vulnerable groups. Activities of intermediaries are then aimed at mitigating, alleviating, and containing the destructive manifestations of conflict, in particular any form of physical violence. But if human rights violations are perceived foremost as the cause of the eruption or escalation of a violent conflict, the main objective of activities by both human rights and conflict management practitioners is to address the structural, systemic conditions that give rise to violent conflict in a society. The scholar Johann Galtung introduced the term structural violence to refer to situations where injustice, repression, and exploitation are built into the fundamental structures of society, and where the rights and interests of individuals or groups are impeded upon due to differential access to political representation, economic advancement, and material well-being that is built into a social system. In such situations, a conflict management perspective on human rights must aim at satisfying human needs.11 "The protection and promotion of human rights addresses structural causes of violent conflict by working towards the satisfaction of basic human needs. Institutionalising respect for human rights through, for example, constitutional endorsement of fundamental human rights, the independence of the judiciary, and an independent human rights commission may ensure that such protection is sustained over a period of time and becomes a matter of state policy. It helps prevent high-intensity conflict by limiting the power of the state, affording citizens protection against abuse of rights, and allowing them a large measure of freedom and participation. Root causes can be addressed through measures designed to promote political pluralism, enhance transparency and accountability in governance, enable people to associate freely with groups of their choice, encourage economic growth and equity, facilitate equal access to employment, education, and health care, and strengthen the capacity of the state."12 Go to The conceptual origins of peacebuilding In the first case (human rights violations are treated as a symptom of conflict), the desired outcome will be what some have called "negative peace" (the absence of direct violence and armed conflict); in the second case (human rights violations as a cause of conflict), the goal will be to achieve "positive peace" (a structural transformation towards a socio-political and economic system capable of fostering justice and ensuring a self-sustained peace). Even though these approaches are not necessarily mutually exclusive, and may sometimes be undertaken in a sequential manner, they have very concrete operational implications in terms of the extent of the reforms to engage, the type and duration of the programs to support them, and the criteria which will serve to monitor their implementation. Go to "Negative" or "positive" peace Human rights concerns at different stages of conflictHuman rights considerations are important factors throughout the course of a violent conflict. Although analysts do not necessarily agree about the number of stages and how they overlap, the model developed by the scholars Julie Mertus and Jeffrey Helsing, is an interesting example as it shows how human rights concerns may evolve in the course of a conflict. For analytical purposes, they have identified three--inevitably overlapping--stages and describe the role played by human rights considerations for each of them:
Human rights and negotiated peaceSince the early 1990s, negotiated peace has become somewhat of an international norm of conflict termination. A survey of peace agreements including seventy agreements involving twenty-nine countries has shown that eighteen of these agreements (or series of agreements) included substantive references to human rights, although the degree of specificity and institutional commitment varied considerably.15 Analysts and practitioners alike disagree as to how decisive such inclusion might be.16The human rights perspectiveFrom a human rights perspective, the inclusion of such provisions is viewed as enhancing the chances of human rights promotion and protection at the post-conflict peacebuilding stage. The advocates of such an approach strongly support the inclusion of human rights specialists in peace negotiations and the process of drafting of peace agreements. "With the assistance of these experts, negotiators have the opportunity to, inter alia, craft effective transitional justice provisions which comply with both law and best practice, enact human rights commitments, provide for human rights treaty ratification, set in train rights-based constitutional review or amendment, establish the place of human rights within post-conflict reconstruction plans, establish human rights institutions and either put in place or provide for national and international programmes of human rights monitoring and protection."17 In that perspective, a mere reference to the respect of human rights is not sufficient. Dispositions to ensure long-term institutional changes (such as the establishment of national human rights institutions, reforming the existing institutions, such as the police and the judiciary) are essential. 18The conflict resolution perspectiveFrom a conflict resolution perspective, the inclusion of human rights provisions may not affect the chances of human rights promotion and protection at the post-conflict peacebuilding stage. Some even argue that when the most important objective is to stop the armed conflict and secure "negative peace," forcing the inclusion of extensive human rights provisions may hinder the chances of reaching a peace agreement. Yet, securing a "negative peace" is essential because without ending the violent confrontation, there can be no human rights promotion and protection. 19The absence of empirical proof of the impact of the inclusion of human rights provisions in peace agreementsTo date, no comprehensive and substantial research has empirically demonstrated the relationship between the inclusion and implementation of human rights provisions in peace agreements and their impact on both the chance to reach an agreement and its sustainable implementation.20 As such, one can only state for sure what remains to be known:1) There is no evidence that including human rights provisions makes it more difficult either to reach agreement or to implement peace settlements. 2) There is little evidence that human rights provisions per se, without institutional change and/or significant international contribution to monitoring and capacity-building, make agreement or implementation easier or more successful in the short or medium term.21 The preparation of the establishment of sustainable human rights systems before peace negotiations"Preparation for the establishment of sustainable human rights systems may actually precede peace negotiations and agreements in that considerable effort can already get underway even as fighting continues."22 For instance, the application of a consistent human rights analysis and a close monitoring of the violations will set the parameters for defining solutions to the conflict in human rights terms and pursuing justice after the conflict ends. The support to the efforts of local human rights activists, especially for the monitoring, analysis and reporting of human rights violations, can establish strong foundations for post-conflict human rights civil society organizations.23[Back to Top] Human rights and the different dimensions of the peacebuilding processThe uneasy but crucial articulation between peacebuilding and human rightsThe fields of peace and security on one hand, and human rights on the other, have developed separately with separate theories and separate practices. As a consequence, "the practices within the two fields have basically mirrored this division - or vice versa."24 They often continue to be perceived as representing two distinct approaches to the construction of a society where justice, security, and human dignity are fundamental political principles.25 "A fundamental difference in the nature of human rights and peacebuilding lies in the fact that human rights have an individual approach (to human security), while peace-building almost per definition - since 'peace' is understood not a 'state of mind' but as a 'state of society' - is a collective effort. This difference has wide implications for the policy and practice of creating security in a society, at any given point in time."26However, "if one takes the wider view on both areas it becomes...clearer that human rights-promoting policies and peace-building policies not only may go, but rather must, go hand in hand. To focus on one set of policies without the other is at best ineffective and at worst counterproductive."27 Therefore, even though tensions may continue to exist between practitioners of human rights and conflict resolution, especially in terms of values, goals, dilemmas, and methods, there is now a widespread recognition among academics and practitioners alike that the two fields are interdependent and that "professionals in these two fields need to understand one another and learn to work better together."28 The promotion and protection of human rights is crucial to preventing the escalation of conflict into serious violence, as well as in establishing the basis for a sustainable peace, two key inter-related aspects of peacebuilding.29 Go to debates Protecting human rights in the prevention phaseIn the conflict prevention phase, "special emphasis is placed on ensuring the protection of minorities, strengthening democratic institutions, realizing the right to development and securing universal respect for human rights. Preventing massive human rights violations from arising, responding to violations before they escalate into conflicts and controlling and resolving conflicts before they escalate further are central concerns of preventive action."30 A critical element of the conflict prevention phase is institutional reform. In addition to the fact that reforming historically abusive state institutions can help address the underlying causes of violent conflict and thus prevent future violence, it is an important test of the political will to engage in real change and prevent abuses. If reforms are resisted or not implemented seriously, the risks of serious conflict are increased. 31Restoring and protecting human rights in the peacebuilding phaseIn the aftermath of conflict, violence and suspicion often persist. Government institutions and the judiciary, which bear the main responsibility for the observation of human rights, are often severely weakened by the conflict or complicit in it.32 Yet, a general improvement in the human rights situation is essential for the rehabilitation of war-torn societies. "Such efforts, in the quest for sustainability, will obviously be prospective in focus, concentrating on the development of systems and institutions capable of delivering long-term future results. They must also, however, address the past, whereby its wounds are treated so that they are at least less likely to infect the future."33 Indeed, many argue that healing the psychological scars caused by atrocities and reconciliation at the community level cannot take place if the truth about past crimes is not revealed and if human rights are not protected. To preserve political stability, human rights implementation must be managed effectively. Here, some trade-off dilemma may appear between the need to re-establish security, which might require collaborating with perpetrators of earlier human rights violations, and the need for justice. 34 Even more fundamentally, the promotion and protection of human rights must aim at deepening a culture of human rights within a society, and "be an ongoing part of nation-building, particularly in a multi-ethnic country."35 Beyond justice & rule of law: addressing the structural causes of violent conflictA human-rights based approach to peacebuilding is closely related to issues of justice and rule of law. Yet it also goes beyond that. The scope and definition of human rights include such norms as the rights associated with political participation, economic and social rights, freedom of expression, and nondiscrimination.36The activities and programs stemming from this broader understanding of human rights will include not only the pursuit of justice and reconciliation, establishing the parameters to balance the demands of victims with concerns regarding socio-political stability,37 but will also aim to:
Go to Economic recovery and Psycho-social recovery [Back to Top] Human rights and other dimensions of the Justice & Rule of Law agendaThe human rights approach is particularly critical in every single dimension of the justice and rule of law agenda.Human rights and judicial & legal reform/(re)constructionHuman rights promotion and protection depend on the existence of a well-functioning justice system and of laws that comply with international human rights standards and norms. The reforms in both sectors are therefore intimately linked. Most post-conflict states lack a functioning and legitimate judicial system. Reforms and efforts to (re)build that system are crucial elements in the process of promoting and protecting human rights.More specifically, the following activities explicitly refer to human rights:42
Human Rights and Traditional/Informal Justice SystemsInformal dispute resolution systems often help alleviate the deep state of lawlessness and injustice created by the absence of a functioning formal justice system. In that perspective, traditional and informal justice systems may help limit the occurrence of human rights abuses.44 However, they are often seen, in some cases with good reason, as incompatible or at least not respectful of individual rights and other standards established in international law. In addition to discriminatory practices, recourse to inhuman and degrading punishments are the most common issues encountered with respect to traditional or informal justice systems, in particular those systems that are based on the application of a fundamentalist interpretation of religious principles. As a consequence, human rights activities are concerned with ensuring that adequate monitoring mechanisms are put in place to make sure that these systems comply with human rights standards. Human rights trainings are also organized to help improve the rules and practices of traditional/informal systems so that they comply with international human rights standards.Go to Traditional and informal justice systems Human rights and transitional justiceTransitional justice refers to a field of activity focused on how societies address legacies of past human rights abuses through a combination of complementary judicial and extra-judicial mechanisms, as well as different forms of exploring the violent past. This means that human rights law constitutes the overarching frame of reference for transitional justice. More specifically, "transitional justice relies on international law to make the case that states undergoing transitions are faced with certain legal obligations, including halting ongoing human rights abuses, investigating past crimes, identifying those responsible for human rights violations, imposing sanctions on those responsible, providing reparations to victims, preventing future abuses, preserving and enhancing peace, and fostering individual and national reconciliation."45Here, the retrospective and prospective dimensions of justice are closely inter-related. The traumatic events of the past create heavy legacies for future generations...if not addressed, [they] risk undermining efforts to establish sustainable human rights protection systems...The lack of justice and accountability perpetuates climates of impunity, which undermine the rule of law as well as exacerbating a sense of injustice and discrimination within targeted communities.46 Transitional justice programs also have secondary effects on the capacity of a society and a state to protect human rights in a sustainable manner. Through public information campaigns organized for the transitional justice process, these programs contribute to raising public awareness about human rights protection; generally mobilize extensive civil society networks as well members of the national judicial system, potentially contributing to the building of a sustainable community engaged in the protection of human rights.47 The Special Court for Sierra Leone, for example, initiated a public outreach campaign that aims to inform and explain the work of the Court, the broader issues of justice and the citizens role. The principle that effective transitional justice is integral to the ability of a state to build a sustainable human rights protection system is expressly acknowledged by the UN, as exemplified by frequent statements of the High Commissioner for Human Rights.48 Go to Transitional justice Human rights and access to justiceAccess to justice is also framed in the language of human rights. As stated in a UNDP report on the subject, "access to justice is a fundamental right, as well as a key means to defend other rights."49 Indeed, if citizens can access justice institutions (formal and informal), they are in a better position to get their human, political, legal, and socio-economic rights recognized and protected. On the contrary, the deprivation of that access means the denial of human rights, socioeconomic vulnerability, legal uncertainty, and political discrimination. International human rights principles and standards also constitute the normative framework by which the efficiency, fairness, and legitimacy of justice systems are assessed. Indeed, the notion of access to justice also involves the guarantee of the quality of the justice process.50 Go to Access to justice1. Michelle Parlevliet, "Bridging the Divide: Exploring the relationship between human rights and conflict management," Track Two 11, no. 1 (March 2002). 2. United Nations, Human Rights Today: A United Nations Priority, "Human Rights and Conflict" (UN Briefing Papers, December 1998); Parlevliet, Bridging the Divide: Exploring the relationship between human rights and conflict management. 3. Comment by Bill O'Neill, 10 October 2008. 4. United Nations, Human Rights Today: A United Nations Priority, "Human Rights and Conflict." 5. Parlevliet, "Bridging the Divide: Exploring the relationship between human rights and conflict management." 6. Ibid. 7. Oskar N.T. Thoms and James Ron, "Do Human Rights Violations Cause Internal Conflict," Human Rights Quarterly 29 (2007): 676. 8. Comment by Bill O'Neill, 10 October 2008. 9. Comment by Bill O'Neill, 10 October 2008. 10. Parlevliet, "Bridging the Divide: Exploring the relationship between human rights and conflict management." 11. Johan Galtung and Anders Helge Wirak, "Human needs and human rights--A theoretical approach," Bulletin of Peace Proposals 1 (1977): 251-258. 12. Parlevliet, "Bridging the Divide: Exploring the relationship between human rights and conflict management." 13. Julie A. Mertus and Jeffrey W. Helsing, "Introduction: Exploring the Intersection between Human Rights and Conflict," in Human Rights and Conflict: Exploring the Links between Rights, Law, and Peacebuilding, ed. Julie A. Mertus and Jeffrey W. Helsing. (Washington, D.C.: United States Institute of Peace Press, 2006), 10. 14. Comment by Bill O'Neill, 10 October 2008. 15. Hurst Hannum, "Human Rights in Conflict Resolution: The Role of the Office of High Commissioner for Human Rights in UN Peacemaking and Peacebuilding," Human Rights Quarterly 28 (2006): 43. 16. For a comprehensive analysis of the relationship between peace agreements and human rights, see Christine Bell, Peace Agreements and Human Rights (Oxford: Oxford University Press, 2000). 17. Michael O'Flaherty, "Future Protection of Human Rights in Post-Conflict Societies: the Role of the United Nations," Human Rights Law Review 3, no. 1 (2003): 56. 18. Parlevliet, "Bridging the Divide: Exploring the relationship between human rights and conflict management." 19. Ibid. 20. Hannum, "Human Rights in Conflict Resolution: The Role of the Office of High Commissioner for Human Rights in UN Peacemaking and Peacebuilding," 7. 21. Ibid, 47. 22. O'Flaherty, "Future Protection of Human Rights in Post-Conflict Societies: the Role of the United Nations," 57. 23. Ibid. 24. Elisabet Abiri, Lets talk! - Human Rights meet Peace and Security (Swedish International Development Agency, Report no. 28896, 2006), 3. 25. Kjell-Åke Nordquist, The Crossroads of Human Rights and Peace-Building - an ongoing debate (Stockholm School of Theology, Research Program on Human Rights and Peacebuilding, Paper No. 2, 2008), 2. 26. Ibid, 4. 27. Abiri, Lets talk! - Human Rights meet Peace and Security, 21. 28. Ellen L. Lutz, Eileen F. Babbit, and Hurst Hannum, "Human Rights and Conflict Resolution from the Practitioners Perspectives," Fletcher Forum of World Affairs 27, no. 1 (Winter/Spring 2003): 192. 29. "Human Rights in Conflict Resolution," 5; see also B.G. Ramcharan, "Human Rights and Conflict Resolution," Human Rights Law Review 4, no. 1 (2004): 1-18. 30. United Nations, Human Rights Today: A United Nations Priority, "Human Rights and Conflict." 31. Comment by Bill O'Neill, 10 October 2008. 32. O'Flaherty, "Future Protection of Human Rights in Post-Conflict Societies," 53. 33. Ibid. 34. Comment by Ebrahim Afsah, 9 November 2008. 35. Ramcharan, "Human Rights and Conflict Resolution," 18. 36. Hannum, "Human Rights in Conflict Resolution," 40. 37. United Nations, Human Rights Today: A United Nations Priority, "Human Rights and Conflict." 38. William A. Schabas and Peter G. Fitzmaurice, Respect, Protect and Fulfil: A Human Rights-Based Approach to Peacebuilding and Reconciliation (Border Action, 2007), 47-48; Parlevliet, "Bridging the Divide: Exploring the relationship between human rights and conflict management." 39. Ramcharan, "Human Rights in Conflict Resolution," 49. 40. Schabas and Fitzmaurice, Respect, Protect and Fulfil: A Human Rights-Based Approach to Peacebuilding and Reconciliation, 48. 41. Amartya Sen, Development As Freedom (New York: Anchor Books, 1999), 3. 42. See, for example, Ramcharan, "Human Rights in Conflict Resolution," 42. 43. Comment by Bill O'Neill, 10 October 2008. 44. Chirayath, Sage, and Woolcock, "Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems," 6. 45. Louis Bickford, "Transitional Justice," in The Encyclopedia of Genocide and Crimes Against Humanity 3(2004): 1045. 46. O'Flaherty, "Future Protection of Human Rights in Post-Conflict Societies," 55. 47. Ibid, 56. 48. Ibid, 70. 49. United Nations Development Programme (UNDP), Programming for Justice: Access for All-A Practitioners Guide to a Human Rights-Based Approach to Access to Justice (Bangkok, Thailand: UNDP Regional Centre, 2005), 3. 50. Ibid, 213. |
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