The creation of the Office of the High Commissioner for Human Rights (OHCHR) in 1993 ushered in a new era for the United Nations (UN), in which the human rights discourse was to be put gradually at the heart of the organization's mandate. As the UN Secretary-General famously declared several years later: “There is virtually no aspect of our work that does not have a human rights dimension. Whether we are talking about peace and security, development, humanitarian action, the struggle against terrorism, climate change, none of these challenges can be addressed in isolation from human rights.”Footnote 1 In that sense, OHCHR today plays a key role in safeguarding not just one but all three pillars of the UN: peace and security, human rights and development.
But how does OHCHR discharge its mandate, especially in armed conflicts and other situations of violence? What are its concrete responsibilities, and how does it work to generate respect for the rule of law on the ground?
This article will aim to provide an overview of the range of OHCHR's activities and will point to some of the challenges associated with its work to generate respect for the rule of law, in particular in violent contexts. It is structured in three main parts. First, the article provides a brief overview of the unique mandate of OHCHR and situates it within the broader UN human rights machinery. Second, it gives an account of OHCHR's experience and approach in building respect for the rule of law, including in armed conflicts and post-conflict situations. Third, it focuses on the specific mandate of OHCHR with respect to violations taking place in armed conflict, and outlines how this informs OHCHR's field operations. This section also discusses some of the challenges that OHCHR faces in the discharge of its mandate, and highlights some innovative initiatives undertaken in the field.
A brief overview of OHCHR's main role and mandate
OHCHR was created by UN General Assembly Resolution 48/141 of 20 December 1993, following the recommendations of the 1993 World Conference on Human Rights in Vienna.Footnote 2 Its general mandate consists of “promoting and protecting the effective enjoyment by all of all civil, cultural, economic, political and social rights”.Footnote 3 OHCHR is required to have as its head a High Commissioner: “a person of high moral standing and personal integrity”, who must “possess expertise, including in the field of human rights, and the general knowledge and understanding of diverse cultures necessary for impartial, objective, non-selective and effective performance of the duties of the High Commissioner”.Footnote 4 OHCHR is quite distinct from the Human Rights Council (HRC),Footnote 5 with which it is still often confused, and from the different committees established to monitor the implementation of the core human rights treaties,Footnote 6 as well as from the various independent experts (named “special procedures”) nominated by the HRC.Footnote 7 OHCHR supports the work of the committees and the Special Rapporteurs, but is independent from their mandate.
The work of OHCHR is organized in four substantive divisions: (1) the Research and Right to Development Division, which develops policy and provides guidance, tools, advice and capacity-strengthening support on thematic human rights issues; (2) the Human Rights Treaties Division, which supports the treaty bodies; (3) the Field Operations and Technical Cooperation Division, which is responsible for overseeing and implementing OHCHR's work in the field; and (4) the Human Rights Council and Special Procedures Division, which provides substantive and technical support to the HRC, the HRC's Universal Periodic Review mechanism and the HRC's special procedures.Footnote 8
In addition, as of December 2014, OHCHR had thirteen country offices and thirteen regional offices or centres around the world.Footnote 9 It employed 1,189 staff, 474 of who were based in the field, 695 in Geneva and twenty in New York. OHCHR also supported close to 820 human rights officers serving in thirteen UN peace missions or political offices.Footnote 10 This combination of substantive research and legal development work, matched with active field presence as it relates to human rights monitoring, is precisely one of OHCHR's specificities.
OHCHR's experience and approach in building respect for the rule of law, including in armed conflicts and post-conflict situations
The approach of OHCHR to protecting and promoting human rights is conceptualized in three different phases: (1) ensuring better prevention of human rights violations, (2) enabling rapid reaction to a crisis and constant monitoring, and (3) addressing post-conflict situations, notably through the support of transitional justice mechanisms. This part of the article addresses each of these phases, while providing some examples of recent tools aimed at generating better respect for the law – before, during and in the aftermath of armed conflicts or other violent situations.
Prevention
These past years, the prevention of human rights and IHL violations has been a daunting but essential task for human rights and humanitarian organizations, including OHCHR.Footnote 11 Of course, there is no miracle recipe that could ensure the absolute prevention of human rights violations. Prevention will necessarily be about the implementation of different tools and mechanisms touching different sectors of a society, dealing with issues of development, education, health, rule of law or democratization.
To prevent human rights violations, OHCHR works mainly through its field offices, through the human rights component of peace missions, and through advisers in specific countries. The headquarters in Geneva support the field offices, and are also specifically in charge of some countries, such as China and India.
Across the board, OHCHR works closely with other UN agencies, notably to turn into reality the UN Secretary-General's Five-Year Action Agenda of 2012, which among other action points proposes to
[a]dvance a preventive approach to human rights by: [d]eveloping a policy framework that identifies basic elements needed to prevent human rights violations; [e]stablishing a preventive matrix that will chart progress and gaps in the use of a range of human rights instruments; [and] [a]dvancing the responsibility to protect agenda.Footnote 12
Capacity-building and technical support
Encouraging universal ratification of human rights treaties by States and enhancing their implementation is one of the facets of OHCHR's work on prevention. Examples of such work include capacity-building in helping governments to adopt human rights-compliant domestic legislation. For instance, following the Arab Spring in Tunisia, the adoption of the new Constitution was an essential step for the country's transitional process. OHCHR, through the UN country team, provided the National Constituent Assembly Speaker and Consensus Commission with extensive comments and recommendations throughout the drafting process.Footnote 13 The Constitution was adopted in January 2014,Footnote 14 and although it fell short of incorporating some important provisions,Footnote 15 it does include articles on national institutions and bodies related to elections, justice, human rights and the media, and guarantees their constitutional protection according to international standards.Footnote 16
Another example is the support provided to Uganda, in cooperation with the Uganda Human Rights Commission and civil society organizations, which resulted in the adoption of the Prevention and Prohibition of Torture Act, consistent with the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.Footnote 17 Similar support was given to constitutional and legislative processes in Egypt, Fiji, Libya, Somalia and Paraguay.Footnote 18
Early warning and rapid response
Prevention also presupposes the development of tools enabling the international community to detect early signs that a situation might degenerate into one leading to serious human rights violations. Early-warning mechanisms include looking at indicators such as hate speech, discrimination policies, recruitment of child soldiers, or the existence of dire economic and social conditions (starvation, extreme poverty, etc.). In this context, collaboration with other human rights mechanisms such as the special procedures plays a central role, because it enhances the development of country-specific or thematic strategies.Footnote 19
In order to anticipate and respond to a deteriorating human rights situation, OHCHR's Rapid Response Unit tries to swiftly deploy personnel to the field.Footnote 20 As explained on OHCHR's website:
The Rapid Response Unit has, in recent times, conducted or coordinated the establishment of fact-finding missions or commissions of inquiry mandated by the Human Rights Council (HRC) on the Occupied Palestinian Territories, Democratic People's Republic of Korea and Syria (on-going since 2011). The Commission of Inquiry on Central African Republic, mandated by the Secretary General, and the OHCHR Investigations on Sri Lanka, mandated by the HRC are also ongoing. Commissions of Inquiry on Gaza and Eritrea are also being established, as is an OHCHR Mission to Iraq, all mandated by the HRC. Additionally, the Rapid Response Unit has established a human rights monitoring team based in Lebanon and sent fact-finding teams to Mali, Central African Republic and Ukraine. In response to humanitarian crises OHCHR staff have been deployed to the Philippines, Myanmar and Lebanon.Footnote 21
The work of fact-finding missions and commissions of inquiry will be addressed later in this article.
In situations of armed conflicts and violence, OHCHR works closely with other UN entities, such as the Department of Peacekeeping Operations (DPKO), the Department of Political Affairs (DPA) and the Office for the Coordination of Humanitarian Affairs (OCHA), to ensure that that all parts of field missions can better respond to the risk of human rights violations. In some instances, however, UN coordination and action on the field has been sharply criticized. In 2012, the Petrie Report, an independent report commissioned by the UN Secretary-General, assessed the UN's response to the final months of the war in Sri Lanka.Footnote 22 The report was very critical of the UN, characterizing its actions as a “systemic failure”.Footnote 23 It recommended “a comprehensive review of action by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates”. As a response to the report, the UN Secretary-General launched the Human Rights Up Front initiative.Footnote 24 The initiative was to be understood primarily as a coordination tool, outlining six actions that could help the UN system meet its responsibilities regarding human rights, namely:
Action 1: Integrating human rights into the lifeblood of the UN so all staff understand their own and the Organization's human rights obligations.
Action 2: Providing Member States with candid information with respect to peoples at risk of, or subject to, serious violations of human rights or humanitarian law.
Action 3: Ensuring coherent strategies of action on the ground and leveraging the UN System's capacities to respond in a concerted manner.
Action 4: Clarifying and streamlining procedures at Headquarters to enhance communication with the field and facilitate early, coordinated action.
Action 5: Strengthening the UN's human rights capacity, particularly through better coordination of its human rights entities.
Action 6: Developing a common UN system for information management on serious violations of human rights and humanitarian law.Footnote 25
In the background paper prepared by OHCHR and the Office of the UN High Commissioner for Refugees (UNHCR) of 8 May 2013, further specific concerns relating to the protection of the rights of persons in humanitarian crises were identified. The paper noted that “at the field level, the humanitarian community faces multiple challenges in ensuring protection, such as for example, being confronted with restricted access and security concerns including direct military attack”.Footnote 26 It went on to identify some common principles meant to “serve as the foundation for responding to the challenges to the effective protection of human rights in humanitarian crises, including by responding to international human rights and humanitarian law violations”.Footnote 27 These principles, addressing substantive concerns, deserve to be reproduced here in full:
• Primary responsibility of states: The protection of the human rights of affected persons is the responsibility of States. Under international law, non-state armed groups also have certain responsibilities.
• The role of humanitarian actors: All humanitarian actors have a role to contribute to the protection of the human rights of affected persons either directly or as part of a broader strategy, which may include referring available information to relevant stakeholders, whether at the country or Headquarter level. Humanitarian activities must be aligned with protection priorities.
• Protection activities must focus on addressing the most serious violations of international human rights and humanitarian law and respond to the affected population's needs in a manner that protects human rights as an outcome.
• ‘Protection’ should be centred on ensuring respect for international human rights, humanitarian and refugee law. The law is the principal basis and tool for undertaking effective humanitarian action, and provides advocacy arguments with an objective and impartial basis.
• Humanitarian access and accountability: Preserving humanitarian access and addressing accountability for international law violations are both grounded in international law. Both must be treated as human rights and humanitarian imperatives. Given the variety of actors, involved in humanitarian response including NGOs, concerted efforts should be made to ensure that methods and approaches are used complementarily to obtain optimal protection outcomes.
• Monitoring, analysing and reporting with respect to the protection of human rights of affected persons in humanitarian crises, including the root causes of violations, are critical in and of themselves and to inform and contextualise broader humanitarian strategies and responses. Human rights information must be analysed and assessed in terms of accuracy, credibility, compliance with international law and used for advocacy and to inform concrete action. Safe and confidential channels for sharing information must be established.
• Sharing information: Humanitarian actors should adopt and implement a strategy for regularly sharing information with relevant actors, while fully respecting principles of confidentiality. Risk mitigation measures should be put in place to preserve the safety and security of sources of information, particularly victims, witnesses and local civil society actors.
• In securing the protection of human rights, humanitarian actors have different responsibilities to undertake advocacy depending on their mandates and roles (e.g. [humanitarian coordinators] and [Protection Clusters] have a direct responsibility to undertake advocacy). For other humanitarian actors, advocacy can be indirect including through relaying relevant information with duty-bearers and other stakeholders with a view to preventing, putting an end to and seeking accountability for human rights violations, including effective remedies and access to justice for the affected population.
• Public advocacy, whether at the national, regional or global level, should take into account as a priority the protection of the human rights of the affected population. This should be based, inter alia, on an analysis of international human rights and humanitarian law violations, the potential role that an advocacy strategy will have in mitigating violations and the protection of humanitarian actors from possible retaliation.
• Promoting access to justice, including at the national level, and seeking accountability for violations of human rights law are essential elements of the [Inter-Agency Standing Committee's] commitment to ensuring accountability to affected populations.Footnote 28
A final point to be made concerns the addressees of the preventing measures. OHCHR and the human rights community have traditionally focused very much on engaging State actors. However, since the majority of contemporary armed conflicts are of a non-international character – between States and non-State actors or between two or more non-State actors – OHCHR and the UN more broadly are increasingly required to strategically engage with armed non-State actors on human rights and humanitarian issues.Footnote 29 Thus, violations of international law obligations by non-State armed groups are regularly addressed by the reports of peacekeeping missions, such as in the 2014 report on Iraq.Footnote 30 OHCHR reports on country situations also mention human rights and IHL violations committed by non-State armed groups. For instance, in its latest report on Ukraine, OHCHR notes that, in the context of the conflict, “the armed groups continued to carry out abductions, physical and psychological torture, ill-treatment and other serious human rights violations”,Footnote 31 and further lists other violations committed by armed groups.
Reporting and monitoring, including during armed conflicts
In addition to its work to anchor the protection of human rights at the core of UN peacekeeping missions, OHCHR reports on and monitors respect for human rights in situations of armed conflict. The focus of OHCHR's action has been on the rights of those most affected by situations of violence and insecurity, in particular victims of sexual and gender-based violence and other segments of the population with heightened vulnerabilities, as well as people facing a risk of exclusion, marginalization or lack of protection. This may include women, internally displaced persons, children, refugees, migrants, the elderly, the urban and rural poor, persons with disabilities, persons living with HIV/AIDS, persons belonging to minorities and indigenous peoples.Footnote 32
As will be further examined below, OHCHR has also been providing support to fact-finding missions and commissions of inquiry. Other tools include thematic papers on specific issues, such as torture and ill-treatment in Syria,Footnote 33 as well as “mapping” exercises that report on human rights violations in a given conflict. For instance, in 2005 OHCHR conducted a mapping of the human rights and IHL violations committed by all parties to the Afghan conflicts between 27 April 1978 and 22 December 2001.Footnote 34 Another well-known example of a mapping exercise concerns the conflict in the Democratic Republic of the Congo (DRC), which will be briefly addressed below.
The Mapping Report on the Democratic Republic of the Congo (2010)
In late 2005, three mass graves were discovered in North Kivu by the UN Mission in the Democratic Republic of the Congo (MONUC). In consultation with different UN entities (DPKO, MONUC, OHCHR, DPA, and the Office of Legal Affairs, it was recommended that
a mapping exercise of the most serious violations of human rights and international humanitarian law committed within the territory of the DRC between March 1993 and June 2003 be conducted and, on the basis of the findings of the exercise, that an assessment be carried out of the existing capacities of the Congolese national justice system to address these violations and a series of options formulated for appropriate transitional justice mechanisms that would assist in combating the prevailing impunity in the DRC.Footnote 35
On May 2007, the terms of reference of the mission were decided by the UN Secretary-General, and the mapping process, led by OHCHR, began in July 2008. Between October 2008 and May 2009, a total of thirty-three staff worked on the project in the DRC (including Congolese and international human rights experts). Twenty human rights officers were deployed in the country, operating out of five field offices. The mapping team's 550-page report contains descriptions of 617 alleged violent incidents occurring in the DRC between March 1993 and June 2003. Each of these incidents pointed to the possible commission of gross violations of human rights and/or IHL.Footnote 36 The methodology of the report was based on 1,280 interviews and analysis of over 1,500 documents; only events reaching a certain threshold of gravity were recorded, and incidents had to be backed up by two independent sources to be reported in the document.Footnote 37 The legal framework to which the report referred was international human rights law, IHL and international criminal law.Footnote 38
While reactions to the report were generally very positive – both from human rights NGOsFootnote 39 and from StatesFootnote 40 – some of the States implicated in the report, notably Angola, Burundi, Rwanda and Uganda, strongly reacted to it and sent letters of protest to the High Commissioner.Footnote 41 The DRC itself criticized the report as being incomplete and biased, and as going outside its mandate.Footnote 42
The Mapping Report was an exceptional exercise realized by OHCHR, in both magnitude and depth. Despite the few criticisms, mainly from implicated States, the report constitutes a thorough and meaningful account of one of the deadliest conflicts in contemporary international relations. It is nevertheless regrettable that there was no follow-up to the report, even though proposals were made in that direction.Footnote 43
Fact-finding missions and commissions of inquiry
Over the past twenty years, OHCHR has assisted almost forty commissions of inquiry and fact-finding missions.Footnote 44 Fact-finding missions and commissions of inquiry can be mandated either by the HRCFootnote 45, by the UN Security Council or by the UN Secretary-General,Footnote 46 or can be initiated by OHCHR itself as part of its general mandate under UN General Assembly Resolution 48/141.Footnote 47 In the latter case, members of the fact-finding missions are usually OHCHR staff. The membership of commissions of inquiry is otherwise composed of independent experts, while OHCHR provides support in staff or secretarial matters. Whereas commissions of inquiry seem to be more focused on international criminal law, both types of investigative bodies aim at establishing the facts and recording the context of the events, identifying the alleged perpetrators, and providing recommendations to the State concerned as well as to the international community as to how to address violations.Footnote 48
In its 2011 Annual Report, OHCHR underlined that, in the context of setting up commissions of inquiry/fact-finding missions, the office systematically conducted lessons learned exercises to ensure greater cohesive planning and enable future commissions to be established in the light of best practices.Footnote 49 Among the lessons learned identified in the report, it mentioned the need to develop a core secretariat team and a witness protection strategy, as well as the inclusion of specific expertise, such as forensics and military advisers.Footnote 50 Challenges to commissions of inquiry included:
tight reporting deadlines; parallel investigations occasionally established by other UN bodies; multiple commissions of inquiry established simultaneously; and the lack of a readily available source of regular budget funding for these urgent and time-sensitive mandates, leading to ad hoc arrangements that complicated administrative procedures and undermined transparency.Footnote 51
One could add to this list the difficulty raised by the fact that commissions of inquiry might not have access to the country concerned (e.g. in Syria or North Korea). This underlines the importance of obtaining the State's consent, for access and cooperation purposes. Finally, the multiplication of fact-finding bodies in one particular situation can at times produce undesirable outcomes, such as contradictory narratives.Footnote 52
In 2015, OHCHR published a guidance document for international commissions of inquiry and fact-finding missions.Footnote 53 The study contains methodological as well as practical recommendations. It should allow the UN to make decisions regarding the set-up of commissions of inquiry or fact-finding missions in a more coherent and systematic manner, as well as to avoid discrepancies and possible double standards.
Implementing the rule of law in societies in transition
As noted by one commentator:
[W]hatever decisions are reached with respect to accountability for past crimes, it is doubtful that there can be stable or sustainable peace unless the immediate post-conflict period addresses protection of human rights in the present. While this issue is closely related to ensuring the rule of law, it is also tied to traditional human rights norms, such as rights to political participation, economic and social rights, freedom of expression, and non-discrimination.Footnote 54
The work of OHCHR in post-conflict settings consists mainly of promoting access to justice for human rights violations. In 2013 and 2014, the focus has been on addressing sexual and gender-based violence. For instance, assessment missions to the Central African Republic, Colombia, the DRC and Somalia made recommendations to strengthen those countries’ legal and institutional structures regarding sexual violence in conflict. In the DRC, the UN Joint Human Rights Office supported mobile courts to deal with cases of sexual violence, and provided military prosecutors with technical support to investigate sexual violence and other serious violations in remote areas of the country. OHCHR also supported efforts in Afghanistan, Guinea-Bissau and Sierra Leone to address sexual and gender-based violence. In addition, together with UN Women, OHCHR finalized a guidance note on reparations for victims of sexual violence and launched a study on reparations for survivors of sexual violence in Kosovo.Footnote 55 Finally, OHCHR, “as the lead entity within the United Nations system in the area of transitional justice, has been assisting with developing standards and operational rule of law tools as well with the design and implementation of transitional justice mechanisms”.Footnote 56
OHCHR's specific mandate in situations of armed conflict
Within the UN, several entities, offices and agencies have to deal with situations of emergency and armed conflict.Footnote 57
Because respect for human rights also has to take place during armed conflicts,Footnote 58 OHCHR's mandate covers violations of human rights committed in armed conflict, including when they constitute international crimes, as well as issues relating to the protection of civilians.Footnote 59 It is thus common for OHCHR reports to include legal assessments of situations under IHL and human rights law, as well as international criminal law and international refugee law.Footnote 60
In working to promote respect for the rule of law in armed conflicts or other violent situations, OHCHR frequently works through its field presence, as well as through the human rights component of UN peacekeeping missions. In addition, the High Commissioner regularly reports to the UN Security Council on the human rights-related issues arising out of armed conflict situations.
OHCHR's standalone field presence
OHCHR is the only office which has an investigative mandate within the UN field presence. As such, it plays an essential role in monitoring and addressing human rights violations in armed conflict situations. The first OHCHR field presence in Rwanda and Burundi was established in 1994 by Ayala Lasso as an attempt by the then High Commissioner to respond directly to the Rwandan genocide.Footnote 61 As of December 2014, OHCHR had twelve country offices (Bolivia, Cambodia, Colombia, Guatemala, Guinea, Mauritania, Mexico, State of Palestine, Togo, Tunisia, Uganda and Yemen) and one standalone office in Kosovo. In addition, there were twelve regional presences which included ten regional offices in East Africa (Addis Ababa), Southern Africa (Pretoria), West Africa (Dakar), South-East Asia (Bangkok), the Pacific (Suva), the Middle East and North Africa (Beirut), Central Asia (Bishkek), Europe (Brussels), Central America (Panama City), South America (Santiago de Chile), a sub-regional centre for human rights and democracy for Central Africa (Yaoundé) and a Training and Documentation Centre for South-West Asia and the Arab Region (Doha).Footnote 62
Field-based activities of OHCHR will often include issues related to obligations of both human rights law and IHL. For example, the agreement on the establishment of an office in Colombia, signed on 29 November 1996, states that OHCHR will receive “complaints on human rights violations and other abuses, including breaches of humanitarian law applicable in armed conflicts”.Footnote 63 In that respect, OHCHR monitors and reports on alleged violations committed by both States and non-State actors.Footnote 64
There are several challenges faced by OHCHR in its action on the ground. Some of them are institutional, such as the perceived lack of communication between its field offices and headquarters, or different understandings in fieldwork approaches between different UN departments or agencies. Andrew Clapham has identified further challenges in relation to OHCHR's fieldwork in the context of the genocide in Rwanda. His observations remain very much valid for current conflicts. He mentions the following issues:
First, how to raise problems relating to the new government's human rights record when the country is still struggling to cope with a massive genocide which has also destroyed the infrastructure of the country? Second, how to carry out the investigative mandate without interfering with evidence that would be needed to issue the indictments in order to bring to justice those to be tried at the international level? Third, how to cooperate with humanitarian agencies who may only have access to certain camps and places of detention precisely because they will not be collecting information on human rights abuses? Fourth, how to work in close cooperation with the authorities on technical cooperation programmes involving the training of civilian police forces, the establishment of an independent judiciary, assistance in the preparation of dossiers for the prosecution – yet remain able to take a tough stand with these same authorities when there are allegations of serious human rights violations? Fifth, how to relieve the gross overcrowding in the prisons (at that time 70,000 in prisons designed for around 7,000) without simply encouraging new rounds of arrests?Footnote 65
These challenges are regularly addressed internally by OHCHR, and lessons learned and methodologies are published in its Manual on Human Rights Monitoring, which is currently under revision.Footnote 66 One chapter in the Manual deals precisely with the delicate topic of the interaction with national authorities. The Manual recognizes that “[e]ngaging with national authorities and institutions is a challenging task. Field presences have to engage even with those that are not fully committed to promoting and protecting human rights.”Footnote 67 The Manual reminds human rights officers that they need “to establish smooth and transparent channels of communication with their governmental counterparts at all levels, in order to identify and support ‘allies’ in the implementation of human rights norms, while maintaining the integrity of the field presence”.Footnote 68
The Manual also addresses the relationship between human rights law and IHL. In that regard, it advises field staff to adopt a pragmatic approach during monitoring, fact-finding and investigations and to
assess the situation or incident with reference to provisions of both international human rights law and international humanitarian law in order to determine the rules providing the most specific procedural and substantive guarantees. Since there are inconsistencies and gaps between the protection afforded by the various human rights and humanitarian law instruments, as well as national and local laws, the individual should be entitled to the most protective provisions of applicable international, national or local laws. Accordingly, if international humanitarian law affords better protection than human rights law, humanitarian law should be applied and vice versa.Footnote 69
When fully revised, the Manual will further cover issues such as “Monitoring and Documenting Human Rights Violations”, “Engagement and Partnerships for Protection and Empowerment” (including a section on “Interaction with Non-State Actors”) and “Focus Areas for Human Rights Monitoring”.Footnote 70
The human rights component of peacekeeping missions
Several general institutional reforms within the UN, such as the UN Secretary-General's reports An Agenda for Peace: Preventative Diplomacy, Peace-Making and Peace-Keeping Footnote 71 and Renewing the United Nations: A Programme for Reform,Footnote 72 led to the inclusion of human rights components within UN peacekeeping missions.Footnote 73 In 2000, the Report of the Panel on United Nations Peace Operations submitted by Lakhdar Brahimi noted that:
OHCHR needs to be more closely involved in planning and executing the elements of peace operations that address human rights, especially complex operations …. If United Nations operations are to have effective human rights components, OHCHR should be able to coordinate and institutionalize human rights field work in peace operations; second personnel to Integrated Mission Task Forces in New York; recruit human rights field personnel; organize human rights training for all personnel in peace operations, including the law and order components; and create model databases for human rights field work.Footnote 74
Addressing the cause of conflicts and ensuring that human rights are taken into account in peace negotiations and post-conflict settings are the rationales behind the human rights component of peacekeeping and political missions. This forms an important part of OHCHR's efforts to implement the rule of law in armed conflicts. Indeed, as noted by one commentator, “peace operations cannot solely be focused on military and, possibly, civilian police aspects. What these operations are addressing are but symptoms of the absence of a system under the rule of law, which … pre-supposes a democratic system.”Footnote 75 Typical functions of human rights components in peacekeeping missions thus include:
• monitoring and reporting on the human rights situation and investigating human rights violations;
• advocating for peace processes to be inclusive, addressing past human rights violations and promoting and protecting human rights;
• integrating human rights in legislative and institutional reforms, including the rule of law and security sectors reforms;
• preventing and redressing violations of human rights and international humanitarian law, with a focus on the protection of civilians;
• building human rights capacities and institutions; and
• mainstreaming human rights into all UN programmes and activities.Footnote 76
As of December 2014, there were fourteen UN peace missions, all of which incorporated human rights promotion and protection into their mandated work.Footnote 77
Human rights divisions are an integral part of the peacekeeping missions. Administratively, human rights officers depend on the DPKO, but the selection of officers is done by OHCHR. In addition, human rights divisions have a dual reporting line: one to the Special Representative of the UN Secretary-General and one to the High Commissioner.
The integration of human rights and rule of law issues within peacekeeping missions has been met with some criticism. As underlined by an OHCHR staff member,
the humanitarian community (including actors outside the UN) is increasingly concerned about the “humanitarian identity” becoming blurred, advocating for further separation from political, military, and human rights actors. Some humanitarians feel that in many parts of the world, their acceptance and safety is endangered due to the perceived blurring of roles.Footnote 78
The High Commissioner's briefings to the UN Security Council
One last interesting “tool” used by OHCHR to promote respect for human rights in armed conflicts is the regular briefings of the High Commissioner to the UN Security Council. This practice was initiated by High Commissioner Mary Robinson, and it illustrates the growing interest of the UN Security Council in human rights issues. By 2014, the High Commissioner had briefed the Security Council more than twenty times, attracting its attention to the most pressing human rights issues in armed conflicts or other situations of violence.Footnote 79 Despite the fact that the Security Council does not necessarily act on these briefings, they nevertheless have the important effect of bringing to the attention of the Council the most serious human rights violations occurring in the year. As a consequence, they also deprive the Security Council of the possibility of arguing that it was not aware of those human rights crises.
Conclusion
In his 2002 report Strengthening of the United Nations: An Agenda for Further Change, the UN Secretary-General stated that “as a worldwide organization, the United Nations provides a unique institutional framework to develop and promote human rights norms and practices, and to advance legal, monitoring and operational instruments to uphold the universality of human rights while respecting national and cultural diversity”.Footnote 80 As part of the UN, OHCHR operates within this “unique institutional framework”. In practice, this means that OHCHR has to work not only towards the promotion of respect for human rights by States, but also towards encouraging long-lasting and just solutions to the many challenges and threats to human rights in contemporary international relations. In her last statement to the HRC, High Commissioner Navi Pillay reminded member States:
OHCHR stands at your side, not in your way. It is a friend that is unafraid to speak the truth. This Office does not only seek to help States identify gaps in their human rights protection. It also assists States to repair them, and to pursue policies that promote equality, dignity, development and the resolution of conflict, thus helping to realise the full sense of its double mandate – to promote and to protect the rights of all.Footnote 81
OHCHR has aimed at fulfilling its very large mandate to promote and protect “the effective enjoyment by all of all civil, cultural, economic, political and social rights”. The strategies and tools it has chosen, including in armed conflict situations, have not always been successful. Perhaps this can be explained by the very nature of the human rights protection discourse, embedded in complex ideological and political struggles, or by the fact that the UN is itself a huge institutional machinery, which necessarily causes discrepancies in coordination and approaches between different offices and entities, not to mention coordination with actors outside the UN.
Initiatives such as Human Rights Up Front might improve coordination within the UN system. The work of fact-finding missions and commissions of inquiry supported by OHCHR, and efforts towards their systematization and methodological coherence, are also a step forward towards better documenting, preventing and repressing serious human rights violations. Similarly, analysis of the methodology and practice of human rights monitoring, such as that conducted in OHCHR's field manual, is an essential effort towards ensuring an efficient system that is capable of addressing human rights violations, including in armed conflicts.
It remains to be seen whether OHCHR and the tools it has elaborated will be able to respond effectively to the most pressing protection challenges in light of phenomena such as the engagement of armed groups with radical ideologies (Islamic State in Syria or Boko Haram in Nigeria) and the fragmentation and complexity of parties to armed conflicts (as in Syria, Libya and the DRC). It is fair to say that these challenges are not those of OHCHR alone, but of the broader human rights and humanitarian community. If these challenges are to be met, coordination, or at the very least concerted action between all actors working to strengthen and uphold the protection that human rights and IHL grant in armed conflict, seems warranted, despite the differences in mandates and constituencies.
