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Rights Fights, Flavours and Futures

Fall / Winter 2015 Tête À Tête

Rights Fights, Flavours and Futures

Navi PillayGB looks ahead to the debates, bottlenecks and pitfalls, and looks at defenders and discontents, in the next decade’s struggles for human dignity

GB: Is there, at the start of this new century, an agreed understanding of human rights around the world?

NP: Because I served as the UN High Commissioner for Human Rights for six years, and also as a former judge, I would always ask: what is the framework under which I carry out my mandate? What are the standards and values that are universal – that all states should uphold? The answer is easy. There is a framework of laws starting with the Universal Declaration of Human Rights, the UN Charter and framework, the Covenants on Civil and Political Rights, Economic and Social Rights. Then all of this is fleshed out until we get Conventions on the Rights of the Child, Women, and so on. All countries subscribe to the Universal Declaration of Human Rights. Many have ratified various conventions, but nobody has actually said, “We don’t support, say, the Convention on the Rights of the Child.”

That is where international common law steps in. These countries have not repudiated those conventions even though they have not ratified them. So what I am saying is that there is indeed an agreed understanding of human rights globally. This understanding has been steadily adopted, over the last 65 years, by older member states. It is a rich treasure trove. And that is where we begin the next century: with a good start, a good framework.

GB: If we were to assemble the leading politicians and thinkers in societies across the globe, would there still be an agreed understanding of rights beyond the strict international legal framework?

NP: The system is not perfect. One can always improve on it. The main complaint, of course, is that it is still rhetoric and lacks implementation. But year after year at the UN summit, all heads of state agree to these principles. So we may differ in specific philosophies across countries, but there appears to be universal acceptance of the general principles and values.

GB: Which region of the world currently has the worst human rights record? Which one has the best record?

NP: I would not adopt that kind of approach – not least because regions are comprised of individual countries, and among those countries there are manifest variations in the human rights records. Of course, there are raging armed conflicts that one can clearly identify: Syria, Ukraine, Iraq, South Sudan, Central African Republic. These are of grave concern to all of us because of the huge displacement of populations, the serious acts of killing, the rape, and, among other things, the recruitment of children into military activity. We all agree that there are some terrible situations in the world.

That said, if you look at the Human Rights Council’s Universal Periodic Review (UPR) – a system devised by member states in which members review the human rights records of other members according to specific criteria – what emerges is that there is not a single country in the world that is completely free of human rights violations. In other words, there is always some problem in respect of rights for certain parts of the populations within those countries. In the second cycle, states are now coming forward to explain how they are implementing the recommendations made by other states. For me, then, that is the standard of what is wrong and right, in human rights terms, in each country.

As for grading countries on the score of rights, let us agree that if a woman is beaten up in her home, she would feel that her human rights have been seriously violated – that is, she cannot enjoy any other rights while she is subject to violence. A Roma person in Germany who is marginalized and poverty-stricken would also consider his or her rights to have been violated. So we do not grade violations and say that just because there are thousands of people being killed in one country we should not pay attention to these other violations or view them as smaller violations. This is why I generally avoid saying that some regions have the best or worst human rights record.

GB: Which countries are at the cutting edge of global human rights debates and discourses?

NP: First we might consider that there are certain countries in which there is patently no serious debate about human rights – that is, there is in fact repression of human rights dialogue. At the other end of the spectrum, the Scandinavian countries are probably in the lead in advancing human rights protections. Sophisticated populations are very keenly aware of their rights and, correspondingly, assert them – in respect of delivery of justice, freedom of speech, assembly rights, and others.

Let me also say that I have been impressed by the increase in rights-based demonstrations by ordinary people around the world – perhaps as a function of the rise of social media and new communications media. Consider the recent protests in Hong Kong, last year’s Idle No More protests in Canada, or the Occupy Wall Street protests a few years ago against decisions made by financial institutions – unaccountable institutions that affect people’s rights.

GB: What reforms can be undertaken to maximize the effectiveness of the UN Human Rights Council in this early new century?

NP: First, I would encourage greater space for participation by civil society organizations. At the moment, the Human Rights Council, unusually for a UN forum, allows NGOs to participate in the UPR presentations. But each presentation lasts less than a minute, and presentations are limited to four or five organizations. I would like that space to expand. In other words, there should be a bigger role for people. The word ‘people’ should be brought back into the UN. For me, this would maximize the effectiveness of what the Human Rights Council is trying to achieve – to wit, better protection of human rights on the ground, which is something that cannot be achieved by government alone.

Second, I believe that the Human Rights Council should always tackle chronic human rights situations. There are longstanding human rights situations in which we see pockets of territory that are now disputed land. There are stateless people within those territories – a situation that has, in some cases, lasted four or five decades. The situation in the Democratic People’s Republic of Korea – North Korea – for instance, was untouched until, for the very first time, the Human Rights Council established a commission of inquiry to examine the concerns over human rights violations there.

GB: Has the Responsibility to Protect (R2P) doctrine been helpful or harmful to the cause of human rights globally over the last 15 years?

NP: I am somewhat ambivalent about the value of R2P. Of course, I understand the principle and I understand that all heads of state accept that R2P is intrinsically a part of sovereignty. I also know the argument about R2P constituting an invasion of sovereignty. It is not. In fact, it is an expression of sovereignty to protect your people. I know that R2P has not been very effective because of the suspicion that it is an invasion of the sovereign right of governments. And so my past office, the Office of the High Commissioner for Human Rights, tended to look at the normative framework of the UN. In my view, that framework is sufficient for the purpose of holding states to account for the obligations that they have undertaken in respect of the protection of their people.

On my visit to South Sudan, I reminded President Kiir and the opposition leader, Riek Machar, based on R2P, of their responsibility to protect their civilians, because I felt that these were two leaders who were turning to violence to hang on to power. I raise this example to note that there are indeed situations in which one can call on, or remind, individuals to abide by the responsibility to protect.

GB: Do you think that R2P has been accepted, philosophically, by non-Western leaders?

NP: I do not think so. They view it with suspicion.

GB: The crime of aggression should crystallize by 2017. Do you think that it will act as a meaningful deterrent to illegal wars?

NP: The purpose of the International Criminal Court (ICC) and the Rome Statute is to deter serious crimes. Clearly, the longstanding resistance to defining and including the crime of aggression in the Rome Statute is an indication that this would be a very important step. I do indeed hope that it will serve as a deterrent and reduce illegal wars. Leaders will be very cautious about engaging in wars that are acts of aggression. Right now Iraq has requested that the US intervene to help it deal with the very serious problem of the Islamic State. President Obama has been very careful in spelling out exactly what the US intends to do, and has established an international coalition to do so. I see all of these measures – and the general case for military intervention – as addressing what the Court will eventually be looking out for. In other words, the Court will be asking: was this an act of aggression or a resort to violence in order to deal with very serious violence against people?

GB: Do you think that there is a sound legal case for intervention in Syria in the Obama rationale?

NP: Yes, I would say so. The commission of inquiry, on which I served, has now produced five or six reports that detail wide-scale crimes and acts of killing in Syria that are still continuing. I myself have called for a referral to the ICC.

GB: So there is a legal basis under the UN Charter for the coalition to intervene in Syria?

NP: It is not really for me to say that there is a case for military intervention in Syria. These are the political decisions that the UN Security Council makes. We all know that the Security Council has not to date supported military intervention in Syria. I know the objection of Russia and China: Moscow and Beijing feel that the military intervention in Libya did not produce a good outcome, and in fact created more problems. That was their objection to military intervention.

GB: Would the human rights landscape in Syria, Iraq and generally across the Middle East and North Africa be different if more countries had ratified the Rome Statute of the ICC?

NP: I think it would. This is a very important law. All states agree that there should be no impunity for serious crimes. I therefore do believe that the human rights landscape in Syria and Iraq and generally across the Middle East could well be different if more countries from that region had ratified the Rome Statute.

I know that the concern of the leaders in some of the countries of that region is that there is no immunity for a serving head of state. However, these countries should see the law instead as ending impunity. I have found that leaders are generally sympathetic to this argument.

GB: How should the ICC’s relationship with Africa evolve over the coming decade?

NP: Let me first recall that article 4 of the Constitutive Act of the African Union is very clear in that it recognizes an obligation to respond to mass crimes and underscores the importance of ending impunity. The African Union itself has set up the African Commission on Human and Peoples’ Rights and the African Court of Justice and Human Rights. Still, I am very concerned about some recent developments at the African Union indicating that sitting heads of state or government or senior state officials are immune from prosecutions during their tenure in office. It is obvious that this idea arose because of the profile of the people indicted, and not because of the nature of the alleged crimes or the profile of the victim. The notion that political power can be a safe haven would create a dangerous double standard for accountability and is also incompatible with international law. I believe that fighting impunity requires not only time and determination, but also political support and commitment. So it is my belief that African states will continue to adhere to the fight against impunity in order to deliver justice and peace to their people, just as they have solemnly affirmed. I hope and trust that the African states that are already party to the ICC will continue to fully abide by their commitment to systematically adopt and implement legislation.

I am sure that the indictments against the Kenyan head of state and deputy president caused consternation, but I myself as high commissioner intervened earlier on to urge Nairobi to conduct national prosecutions. So it was the parliament of Kenya that took the decision that the matter should be referred to the ICC. In other words, Kenya had the option of conducting national investigations and prosecutions, but did not pursue this path.

GB: Where will the world be a decade from now in terms of prosecuting sexual and gender-based mass crimes?

NP: This has been raised again and again with me because I participated in the first decision in the genre, the Akayesu judgement. People are very concerned that there continues to be a failure of investigation, lack of justice and reparation for victims, and indeed that sexual violence is on the rise both in conflict theaters and in the private sphere within countries. All of the commissions of inquiry have documented sexual violence in current conflicts: Democratic Republic of the Congo, South Sudan, Central African Republic, and even in Ukraine. We have reports of truly terrible incidents of sexual violence in Syria and Iraq.

The US recently expressed a desire for much more to be done to address sexual violence. There were cases of rape that were shocking in India, causing people to express their outrage on the streets. There is concern that an increase in instances of sexual violence has not been matched by a commensurate increase in investigations and prosecutions. This is a sad state of affairs. That said, the UN International Criminal Tribunal for Rwanda has confirmed that sexual assault and rape can constitute genocide when perpetrated as a means to destroy, in whole or in part, a national, ethnic, racial or religious group. More and more UN colleagues and international NGOs are cooperating on how best to have these serious crimes investigated.

The ICC has gone even further in not only entrenching these legal developments in its founding treaty, the Rome Statute, but has also set up a trust fund for victims, and has made very clear the rules on the reparations for victims. The Prosecutor of the ICC, Fatou Bensouda, also recently launched a sexual and gender-based crimes policy in order to systematically treat the investigation and prosecution of these crimes. In short, national and international efforts have intensified to combat impunity for sexual and gender-based crimes. So, on the one hand, we have an alarming situation, while on the other there are now mechanisms and tools in place so that these egregious crimes will no longer be ignored in coming decades, but rather met with the full force of the law.

GB: What is South Africa’s near future?

NP: That is the number one question that is being asked here. The country has good institutions – the Constitution, the National Human Rights Commission, the Constitutional Court, a vibrant and free press. It is, however, extremely troubled by a lack of services – essential services like water and power, and essential goods like housing and, of course, jobs. Many blame the incompetence and corruption of the government.

So there is a great deal of anxiety as I return to my country. Of course, I hope that the institutions will hold, and that government representatives will become more accountable. It is a good sign, for instance, that the government had one of its ministers look into the functioning of all of the country’s municipalities, and that the government itself conceded that one third of the municipalities were essentially dysfunctional – meaning that there is virtually zero service delivery to the communities in question. The finding is, to be sure, very troubling, but the fact that the government is publicly investigating it and struggling for solutions is interesting.

I am hopeful that by 2020 South Africa will have progressed much further. The country has done a great deal in its first 20 years post-apartheid. Now it has to protect its institutions and make them function. I also believe that there is a need for donor assistance. It is unfair that this small, young country that has created institutions for a supposedly small and harmonious population is suddenly having to absorb and accommodate millions of migrants and job seekers or people fleeing from conflict and diseases in other parts of the continent.

GB: What is the key source of the anxiety you mention?

NP: The papers are full of it. Television is full of it: corruption, again and again, on the part of government officials. The public protector has produced a report detailing excessive spending on the part of the president himself, and asking him to pay back some of the money. There was the infamous shooting of mine workers at Marikana. A commission on that massacre is ongoing. And so, above all else perhaps, there is a general anxiety about the high levels of violence and rape in the country. People do not feel safe. They need proper law enforcement and protection under the law.

These are all issues that are evidently concerning, but they are manageable and can be addressed. I like that there is reaction on the part of government. The issues are debated in parliament. All of this is openly discussed by everyone.

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Navi Pillay was the UN High Commissioner for Human Rights from 2008 to 2014. She is a past judge of the High Court of South Africa, past judge of the International Criminal Court, and past President of the International Criminal Tribunal for Rwanda.

(Photograph: The Canadian Press / AP / Eranga Jayawardena)
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