Human Rights and Conflicts
Today, some of the most serious threats to international peace and security are armed conflicts that arise, not among nations, but among warring factions within a State. Although situations of internal violence, they often spill over borders, endangering the security of other States and resulting in complex humanitarian emergencies. The human rights abuses prevalent in internal conflicts are now among the most atrocious in the world. In 1996, there were 19 ongoing situations of internal violence around the world in which 1,000 people or more were killed. These so-called "high-intensity conflicts" cumulatively led to between 6.5 million and 8.5 million deaths. In the same year, there were also 40 "low-intensity conflicts", each causing between 100 and 1,000 deaths. Another 2 million deaths can be added to these figures if one includes situations of internal violence that had de-escalated in 1996.
The number of conflict-related deaths is only a small indication of the tremendous amount of suffering, displacement and devastation caused by conflicts. Assaults on the fundamental right to life are widespread -- massacres, indiscriminate attacks on civilians, executions of prisoners, starvation of entire populations. Torture is common in internal conflicts, as are measures restricting people's freedom of movement -- forcible relocations, mass expulsions, denial of the right to seek asylum or the right to return to one's home. 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, leaving their families with the torment of not knowing their fate. Thousands of others are arbitrarily imprisoned and never brought to trial or, if they are, are subject to grossly unfair procedures. Homes, schools and hospitals are deliberately destroyed. Relief convoys, which try to assist civilians by providing humanitarian aid, are attacked.
The denial of fundamental rights relating to employment, housing, food or the respect for cultural life, and large-scale discrimination and exclusion from the decision-making processes of society are the root causes of many grave crises today. 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. The rights to adequate health, housing, education, freedom of movement and expression, privacy and fair trial are only some of the fundamental rights and freedoms affected when hospitals and schools are closed, water and sanitation polluted, local administrations unable to function, and police and judicial systems shattered or corrupted. Government institutions often become increasingly militarized, with the armed forces assuming civilian policing functions and military courts trying civilians. Prolonged conflicts also affect rural areas; crops are destroyed, crippling productivity in subsistence farming and agriculture and leading to chronic food shortages, malnutrition and famines. Ill health and poverty are often the most devastating long-term consequences of conflicts.
Human rights and the transition to peace
The 1993 World Conference on Human Rights affirmed the crucial connection between international peace and security and the rule of law and human rights, placing them all within the larger context of democratization and development. The need to reinforce these vital links has been highlighted by thesharp increase in bloody conflicts and man-made calamities in this decade.
The United Nations is increasingly combining efforts to prevent or end conflicts with measures aimed at reducing human rights abuses in situations of internal violence. 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. In the context of preventive action and peacemaking, the Security Council and the Secretary-General, in carrying out his "good offices", are also assisted by the Department of Political Affairs (DPA).
Recognizing that human rights violations are frequently the root causes of conflict and humanitarian crises, the United Nations is making efforts towards strengthening its early warning capacity and response to conflicts by integrating human rights monitoring into peacekeeping operations, thus enhancing its ability to deal with allegations of human rights violations. The Office of the High Commissioner for Human Rights is developing close contacts with the United Nations departments, offices and programmes responsible for peacekeeping and for humanitarian assistance, in particular the Department of Peacekeeping Operations (DPKO), DPA, the Office for the Coordination of Humanitarian Affairs (OCHA) and the Office of the United Nations High Commissioner for Refugees (UNHCR).
The human rights programme is performing a crucial role not only in the United Nations early warning system, but also in post-conflict reconstruction, building mutual confidence and helping to re-establish a climate of understanding. The international community has recognized that protecting human rights in the aftermath of conflicts cannot be isolated from how the conflict is brought to an end. Experience in assisting countries in transition to democracy has shown how important the inclusion of human rights provisions in peace or transitional agreements can be.
In recent years, beginning with the El Salvador mission in 1990, a number of peacekeeping and other political operations have included a human rights component. A human rights field presence was part of the peace processes in Cambodia, El Salvador, Guatemala and Haiti. The International Civilian Mission in Haiti, for example, has been dedicated to verifying the respect for human rights since its inception in February 1993. After the return to constitutional order in October 1994, the Mission expanded its work to include the promotion of human rights, civic education, electoral assistance and institution-building. It supports the National Truth and Justice Commission and assists in the strengthening of the Haitian judicial and penal system.
The human rights missions in El Salvador and Guatemala demonstrate the crucial role of human rights in rebuilding trust and fostering a climate of reconciliation after armed conflict. In Guatemala, the Human Rights Verification Mission (MINUGUA) was deployed in 1994, two years in advance of the final peace agreement signed by the Government and the opposition front. The largest United Nations human rights verification mission ever mounted, with 13 regional and subregional offices and 245 international staff, MINUGUA's field presence is more extensive than that of many national institutions in Guatemala. In the past two years, the Mission has successively reported dramatic declines in verified complaints of torture, forced disappearances and arbitrary detention.
The High Commissioner for Human Rights has deployed human rights field operations in Burundi, Rwanda, the former Yugoslavia and the Democratic Republic of the Congo (formerly Zaire). In each case, following up allegations of violations and establishing a framework of respect for human rights were seen as part and parcel of the work of creating an atmosphere of trust in a post-conflict situation. This has been a vital lesson for the United Nations in the 1990s.
Developing fundamental humanitarian standards
Just as human rights are a key element in peacekeeping and peace-building efforts, the protection of human rights is also recognized as a priority in humanitarian operations. The United Nations is currently leading efforts to establish minimum humanitarian standards, seeking to identify fundamental rules of human rights and humanitarian law that can be applied in all circumstances, in times of conflict, as well as in situations of mass exodus, for the protection of human rights. These efforts aim to provide the human rights framework necessary to find long-term solutions to the root causes of conflict and to prevent the excesses that make reconciliation so difficult. The United Nations urges national authorities to respect international human rights standards in such situations. But one of the most pressing problems now is enforcing accountability of non-State actors committing crimes against humanity. For these reasons, the United Nations is incorporating human rights concerns into all aspects of its response to conflicts -- from preventive action to humanitarian assistance.
For the United Nations, providing assistance to the victims of conflict is the supreme humanitarian task. Though not traditionally considered a human rights function, there is no doubt that the provision of food, medical care and basic education is a direct and tangible means of supporting the human dignity of the affected population. The human rights framework can also help to set the parameters and rules for the delivery of humanitarian assistance -- ensuring the non-discriminatory treatment of those in need, and paying due regard to the special needs of women and children.
A rights-based approach to peace-building
Just as human rights forge vital links between peace, democracy and development, bringing the full weight of the United Nations human rights programme to bear can also facilitate the successful transition between peacekeeping operations and humanitarian emergency assistance to long-term peace-building and sustainable development. Societies that are emerging from civil conflict have particular needs in the area of human rights and economic development. The complexities of post-conflict situations require that special attention be given to repairing the large-scale damage inflicted on economic, health and educational infrastructures. But international development programmes can also contribute to healing the psychological scars of conflict. Strengthening respect for human rights through development contributes to a climate of confidence that helps a society regain its equilibrium.
Such a human rights framework is most effectively realized when United Nations operations overseeing or implementing peace agreements incorporate human rights specialists, both in their monitoring capacity as human rights observers and as technical advisers, to help strengthen the administration of justice. The United Nations is developing a two-track approach in which immediate humanitarian assistance and long-term development assistance eventually converge, with human rights a crucial binding element in both. This means that the various actors, from international institutions developing projects to individuals operating in the field, must work together, aware of the common goals and mutual needs of the parallel programmes. As demonstrated in Cambodia, El Salvador, Haiti and Rwanda, work in the field demands a delicate mix of standard-setting, training, advice on laws and procedures, and funding. United Nations human rights experts assist in building an independent judiciary and in training police and security personnel in human rights standards for law enforcement. They also provide guidance in drafting press freedom laws, minority legislation or laws securing women's equality.
Without prescribing for any one society a preferred model of economic development or cultural organization, the rights-based approach to peace-building facilitates the growth of civil society. Human rights standards provide the impartial means through which reconciliation can be achieved. A human rights framework provides certain guarantees for justice and also protects against random retribution, establishing the parameters within which democratic societies can legitimately balance the interests of the victims against larger concerns for social harmony.
Breaking the cycle of impunity
Solving conflicts also means addressing past abuses, especially against the civilian population. A recurring theme that applies to all human rights abuses in conflicts is that again and again the members of armed groups kill, torture, rape or attack civilians with virtual impunity, apparently confident that they will never be called to account for their crimes. Impunity is a relatively new concept for an age-old phenomenon of injustice, namely, the absence of penalties or inadequacy of compensation for massive and grave violations of human rights. The manner in which a Government reacts to human rights violations committed by its agents, through action or omission, clearly shows the degree of its willingness to ensure effective protection of human rights. Very often, a Government's declared commitment to respect human rights is contradicted in practice by an alternating cycle of violations and impunity. In some cases, impunity is inscribed in legislation that exempts perpetrators of human rights abuses from prosecution. In other cases, despite the existence of legal provisions for the prosecution of human rights violators, impunity continues in practice. Authorities often do not react to complaints filed by victims, their families or representatives, or to urgent appeals by United Nations special rapporteurs.
Problems related to the independent and impartial functioning of the judiciary have also encouraged impunity. Although Governments are under an obligation to initiate inquiries into allegations as soon as they are brought to their attention, in some countries impartial investigations are rarely conducted. In other cases, public inquiries are compromised, with light sentences imposed on perpetrators despite the gravity of the crimes committed. In particular, trials of members of the security forces before military courts are sometimes undermined by an ill-conceived esprit de corps. There are also instances where low-ranking officials are convicted of human rights violations or crimes, while those in positions of command escape responsibility. Often victims -- and sometimes witnesses who assist in investigative efforts -- are subjected to intimidation and death threats.
For this reason, the United Nations has intensified efforts to bring the perpetrators of such crimes to justice and break the cycle of impunity. Ensuring that individuals are held criminally responsible and punished for committing serious human rights abuses is one of the most effective means of dealing with grave injustice and fostering necessary reconciliation. In countries where the justice system does not function properly, legislative reforms are required first, before the judiciary can effectively undertake investigations. In cases where violations warrant particular treatment because of their special nature or gravity, as with apartheid in South Africa, for example, Governments may establish special truth commissions adhering to the same requirements of independence, impartiality and competence as ordinary courts. The results of their investigations can be made public, and sometimes their recommendations are binding on the authorities.
Towards an International Criminal Court
In 1945, at the Tribunal of Nuremberg, which judged the accused war criminals of Nazi Germany, the international community pledged that "never again" would it allow monstrous crimes against humanity or genocide to take place. For nearly half a century, the United Nations has recognized the need for a world court to prosecute and punish persons responsible for crimes of international concern, such as genocide, crimes against humanity, war crimes and the crime of aggression. In 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, one day before adopting the Universal Declaration of Human Rights. In 1949, a Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August, adopted four Conventions, which codified the humanitarian action of soldiers in times of war. The four Geneva Conventions outlined the humane treatment of wounded, sick or surrendering combatants, prisoners and civilians, and banned the wilful taking and killing of hostages. By 1951, these international treaties against genocide, war crimes and crimes against humanity had entered into force, establishing a body of law known as International Humanitarian Law. The United Nations directed the International Law Commission to draft a statute for an International Criminal Court. But for a long time disagreement among Member States on the jurisdiction of such a court hindered any decisive development towards its creation.
The atrocities that occurred in the former Yugoslavia and Rwanda were widely seen as failures of the international community to intervene in time to prevent serious human rights violations. However, Yugoslavia and Rwanda are not unique as conflict areas where massive violations of human rights and international humanitarian law occurred. In recent decades, there have been many instances of crimes against humanity committed in war for which no individuals have been held accountable. In Cambodia in the 1970s, for example, the Khmer Rouge killed over 1 million people. In many countries around the world, massacres of civilians, including countless women and children, continue to this day.
International Criminal Tribunal for the former Yugoslavia
In 1993, faced with widespread atrocities committed under the policy of "ethnic cleansing" during the Yugoslav conflict between the Muslim, Serb and Croatian communities, the United Nations responded by setting up an international tribunal to bring the perpetrators of the crimes to justice. In May 1993, the Security Council, acting under Chapter VII of the United Nations Charter, created the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (ICTY).The Tribunal highlighted the need for a permament International Criminal Court to deal with such violations quickly and effectively.
The Tribunal, which has its seat at The Hague, the Netherlands, was given the broadest mandate of any international investigative body since the Nuremberg trials. Its statute defines the Tribunal's authority to prosecute individuals responsible for four groups of offences: grave breaches of the Geneva Conventions of 1949; violations of the laws or customs of war; genocide; and crimes against humanity. Moreover, because the Tribunal was established under Chapter VII of the United Nations Charter, the Security Council can use sanctions and other measures to enforce the Tribunal's decisions.
To date, 60 individuals have been publicly indicted, and 28 of the accused apprehended. Five trials are ongoing before the Tribunal and two verdicts have been handed down. One individual was found guilty of crimes against humanity and sentenced to 20 years' imprisonment. In the other case, the accused pleaded guilty to war crimes and was sentenced to five years' imprisonment.
The Tribunal has primacy over national jurisdictions and can issue an international arrest warrant if national authorities are unwilling to cooperate or fail to serve the initial indictment of the accused individuals. The Tribunal then notifies the Security Council to enforce the warrant. By the middle of 1998, eight international arrest warrants had been issued. The attempts by the Tribunal to arrest indicted persons currently living in the Federal Republic of Yugoslavia have been generally without success. The Government has consistently refused to meet its international obligations to hand over those indicted for war crimes and crimes against humanity.
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International Criminal Tribunal for Rwanda
In Rwanda, civil strife and internal violence led to genocide on a vast scale. From April to July 1994, a systematically planned genocide by extremist Hutu militia claimed the lives of between 500,000 and 1 million persons. The main victims of this carnage were members of the Tutsi minority and moderate Hutus. The civil war forced hundreds of thousands of Rwandans to flee to neighbouring countries. By mid-July, more than 2 million Rwandan refugees were living in camps in Burundi, Tanzania and Zaire. Many thousands more had been displaced internally within the territory of Rwanda.
In November 1994, the Security Council created the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda (ICTR). The Tribunal also prosecutes Rwandan citizens responsible for genocide, crimes against humanity and war crimes committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994.
While the Hague Tribunal consists of two chambers and an appeals chamber, the International Criminal Tribunal for Rwanda, which has its seat in Arusha, Tanzania, recently added a third chamber to accelerate the procedural process. The Chief Prosecutor, based in The Hague, serves for both Tribunals.
The International Criminal Tribunal for Rwanda issued its first indictment in November 1995. By 1998, three trials had commenced. As of August 1998, 35 indicted individuals were in custody in Arusha.
One of the most dramatic cases so far before the Tribunal has been the trial of Rwandan ex-Prime Minister Jean Kambanda. In his long-delayed, first appearance before the Tribunal on 1 May 1998, Kambanda pleaded guilty to the crime of genocide. This is the first time in history that an accused individual publicly confessed to the crime of genocide. The former Prime Minister was subsequently sentenced to life in prison, also the first-ever conviction of an individual for the crime of genocide.
In a related trial, the former mayor of the Rwandan District of Taba, Jean-Pierre Akayesu, was convicted on 2 September 1998 of genocide against Tutsi citizens, as well as for the crimes of rape, torture and other inhumane acts and subsequently sentenced to life imprisonment.
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Establishing the International Criminal Court
The International Criminal Court (ICC) was finally created at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, held in Rome from 15 June to 17 July 1998. Delegations from 160 countries, 17 intergovernmental organizations, 14 United Nations specialized agencies and funds and 124 NGOs participated in the five-week landmark Conference. The Rome Statute of the International Criminal Court was adopted by a vote of 120 in favour to 7 against, with 21 abstentions. The treaty establishing the Court needs to be ratified by at least 60 States parties before entering into force.
The establishment of the Court makes it clear that the international community no longer tolerates violations of human rights without assigning responsibility. Unlike the ad hoc Tribunals, the Court provides a comprehensive mechanism for punishing perpetrators of genocide and other crimes against humanity. The assurance that at least some perpetrators of war crimes, crimes against humanity or genocide may be brought to justice acts as a significant deterrent, and in itself may provide incentives to end conflicts.
The ICC forges a missing link in the international legal order, for the International Court of Justice (ICJ) at The Hague handles only cases between States. The ICC will act on the principle of individual responsibility, applied equally and without exception to any individual throughout a governmental hierarchy or military chain of command. The appropriate punishment would apply to heads of State and commanding officers, as well as to low-ranking soldiers in the field or militia recruits. Especially in situations of internal violence, in countries where there is no legitimate Government, ensuring accountability at the international level is crucial.
The Court, comprising the Presidency, a Trial Division, a Pre-Trial Division, an Appeals Division, the Office of the Prosecutor and the Registry, will be located at The Hague in the Netherlands, but may convene elsewhere if necessary. The Assembly of States parties elects the Court's Prosecutor and 18 judges for terms limited to nine years, with no two judges of the same nationality. The judges, in turn, elect the President. The Assembly of States parties will define the precise nature of the Court's relationship with the United Nations at a later stage. The maximum penalty the Court can impose is life imprisonment.
The International Criminal Court will complement national criminal courts, which should normally try alleged criminals within their jurisdiction. The Court is needed only when national institutions have collapsed due to conflict (as in Rwanda) or when a State is unwilling to try its own nationals (as in the former Yugoslavia). The Prosecutor has the power to investigate and bring to justice individuals who commit genocide, crimes against humanity, war crimes and the crime of aggression, once its definition has been finalized.
Since the Nuremberg Tribunal of 1945, the crime of aggression has been recognized as the supreme international offence, a crime against peace which often incites the most serious mass human rights violations, including genocide, war crimes and crimes against humanity. The statute of the International Criminal Court provides for criminal responsibility for the crime of aggression, which is generally understood to comprise planning, preparing, ordering, initiating or carrying out an armed attack or waging a war of aggression, in violation of international treaties. In such a scenario, only individuals in positions of leadership who order or actively participate in such acts of aggression could incur responsibility. However, there is still no consensus on a definition or legal precedent for individual criminal responsibility for acts of aggression, as opposed to wars of aggression. The crime of aggression will only be part of the Court's jurisdiction after a definition _ sufficiently precise and clear to meet the high level of specificity required of criminal law _ has been determined.
Some of the international crimes discussed but not included in the Rome Statute were the illicit traffic in narcotic drugs and substances, terrorism, and crimes against United Nations and associated personnel. As there is no unified international legal system for addressing the crimes of drug trafficking and terrorism, delegates agreed that these crimes could be more effectively investigated and prosecuted by national authorities under existing international cooperation agreements rather than by the International Criminal Court. This was also the rationale for not including crimes against United Nations personnel, which have been on the rise in recent years. Since 1992, almost 300 civilians have lost their lives in the service of the United Nations. Military peacekeeping personnel are also often the targets of assault, kidnapping and murder. This alarming situation prompted the General Assembly to adopt, in 1994, the Convention on the Safety of United Nations and Associated Personnel, which affirms individual criminal responsibility for attacks against United Nations personnel.
[Click here for more information on the International Criminial Court.]