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December 2016, No. 4 Vol. LIII, Human Rights

The fiftieth anniversary of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both adopted in 1966, provides an opportune moment in history to review the progress on the issue of human rights promotion and examine the Security Council¡¯s overall effectiveness in protecting human rights.

Syria:? A Deepening Crisis

This anniversary coincides with a critical point in Security Council history. The situation in Syria is calling into question the Council¡¯s willingness and capacity to halt mass atrocities, let alone its ability to prevent them. It takes a single mass atrocity to overshadow all preceding prevention efforts. The genocides in Rwanda and Srebrenica in 1994 and 1995, respectively, provide eloquent testimony to this. Amidst ongoing competition between the production of body bags and refugees in Syria, the incessant mass atrocities that have plagued the country for the past five years constitute the severest indictment of the Council¡¯s effectiveness. The situation would appear, at the very least, to call for an outlawing of the use of the veto in cases of mass atrocities with a view to redeeming, to the limited extent possible, its credibility and effectiveness in mass atrocity prevention.

1945 Was a Different World

Institutions designed by people invariably reflect the preeminent preoccupation of their time. The United Nations was created by minds exhausted by the scourge of war. They recognized in unison the absolute imperative of saving succeeding generations from the same calamities they had endured twice in their lifetimes. With prevention of a third world war at the forefront of the Organization¡¯s design, the three pillars of the United Nations¡ªpeace and security, development, and human rights¡ªreceived unequal treatment. The provisions laid out for peace and security far outweighed the considerations for development and human rights. Interstate conflicts were regarded as the single greatest threat to international peace and security, while issues of development and human rights were considered an almost exclusively domestic preserve.

At San Francisco in 1945, delegates were faced with the ambitious task of reimagining an organization with the likeness of the League of Nations but without its debilitating shortcomings. The Charter of the United Nations was signed on 26 June 1945. Delegates placed the Security Council, one of the six principal organs, at the top of the hierarchy within the Organization, after the General Assembly, by providing for some of the Council¡¯s decisions to be both binding and to take precedence over all other international agreements. Since the Council predated the adoption of the two Covenants and because threats to international peace and security were considered strictly state-centric, the issue of human rights was largely absent from the Council¡¯s radar at its inception.

The Charter delegated the promotion of and respect for human rights to the Economic and Social Council, which promptly created in 1946 the Commission on Human Rights, with its annual meetings in Geneva, a relocation that physically distanced human rights from the New York-based Security Council. The Commission initially concerned itself with establishing international human rights norms and developed the International Bill of Human Rights, which remains the primary reference for human rights norms. The Commission¡¯s non-context-specific approach to human rights was soon challenged, as an onslaught of human rights violations in newly independent States forced the Commission to undertake country-specific discussions. With the recognition that human rights violations could serve as an early warning sign for rising conflicts, the Commission began deploying special rapporteurs to investigate human rights conditions; their findings would be reported to the Third Committee of the General Assembly in New York, inching the issue of human rights closer to the Security Council. It is also worth recalling that since the bulk of the membership comprised developed countries, their reluctance to giving the Council a defined role in situations involving human rights violations acted as an impediment to the Council acquiring a greater role. This reluctance was, however, whittled down in situations involving mass atrocities, outlined below.

Change of Paradigm

As the nature of armed conflict shifted to intrastate conflict in the late 1980s and as the international community witnessed the horrible massacres of the early 1990s, it was evident that a State¡¯s internal affairs could pose significant threats to international peace and security. The Security Council, the United Nations organ tasked with maintaining international peace and security, soon found itself addressing issues of human rights.

The increase in intrastate conflicts in the 1990s served as the initial nexus between international peace and security and human rights, and it soon became evident that one could not be maintained without the promotion of the other. The human rights machinery, however, was severely under-equipped and burdened by its structure. To remedy the power imbalance between the Security Council and the Commission, then Secretary-General Kofi Annan proposed in the outcome document of the 2005 World Summit the replacement of the Commission on Human Rights with the Human Rights Council, a body designed to have more authority to work towards mainstreaming human rights across the Organization. In March 2006, the General Assembly passed resolution 60/251 establishing the Human Rights Council as a subsidiary body.

Although the Human Rights Council was based, like its predecessor, in Geneva, its country-specific human rights investigations overlapped frequently with the work of the Security Council. The failure of the founding documents of the various human rights posts and bodies within the United Nations to address their respective relationships to the Security Council left the extent of human rights considerations in Security Council workings to the discretion of the Council itself, which was not unwilling to expand its limit.

The widespread human rights violations in the lead-up to the Yugoslavian and Rwandan civil wars retroactively highlighted that internal conflicts could not be written off the agenda of the Security Council merely by the fact that they were confined within state borders. This concept was manifested in 2005 as the doctrine of the Responsibility to Protect (RtoP), which operates on three pillars, two with the aim of preventing mass atrocities¡ªdefined as genocide, war crimes, ethnic cleansing and crimes against humanity¡ªand a third addressing the failure to prevent such crimes. The first pillar maintains that it is every State¡¯s responsibility to safeguard its civilian population from these crimes; the second pillar deals with the capacity-building of fragile or failed States to strengthen institutions in order to facilitate meeting the objectives enshrined in the first pillar. In case these two pillars did not ensure the prevention of a mass atrocity, it would become the responsibility of the international community to take appropriate and, if possible, peaceful measures to protect vulnerable populations. Military measures, authorized by the Security Council under Chapter VII of the Charter of the United Nations, would be merited only when the alleged crimes fell within one of the four crimes mentioned above and all non-military options had been exhausted. The question, then, is where the threshold between human rights violations and crimes of mass atrocity lies. With this dilemma, the Council reaches the peak of its relationship with human rights.

Mass Atrocity Crimes and RtoP

Mass atrocity crimes most recently were defined in the 1998 Rome Statute of the International Criminal Court (ICC). The determination of these crimes and the trigger point of RtoP is left to the judgment of the Security Council on a case-by-case basis. While the fear of repeating Council inaction on the scale of Rwanda and Srebrenica looms in the background of all RtoP assessments, human rights violations alone are not sufficient to trigger intervention in a State¡¯s affairs. This view has been spearheaded by developing nations¡ªincluding India, whose colonial wounds have not yet healed¡ªwhich believe that the doctrine is open to exploitation by powerful nations to undermine the post-Westphalian world order.

General consensus has indicated that Security Council action must be limited to cases in which the degree of human rights violations provides enough reason to suspect impending mass atrocities, and even then Council action must be carefully assessed to ensure that the consequences of any ruling do not fuel instability or cause more harm. This has not always been the case and the Council¡¯s authorization of the use of force has clearly gone wrong in some situations.

Under Article 34 of the Charter of the United Nations, the Council has liberally used its wide-ranging toolbox of non-military measures against emerging conflicts. In the investigative stage, Commissions of Inquiry have been an effective and popular tool in shaping the mandates of peacekeeping operations and guiding referrals to tribunals. Findings of the Commissions further help shape the Council¡¯s use of sanctions, which have served as the compromise between diplomacy and the use of force when the former is proven ineffective and the latter is unwarranted. The Sanctions Committee, a subsidiary body of the Security Council, has successfully put to use targeted sanctions against implicated entities while naming and shaming the accused¡ªa combination of non-coercive and coercive non-military approaches to addressing human rights violations that must be used more strategically.

ICC

While referrals to the ICC or setting up special tribunals to prosecute individuals responsible for committing mass atrocities are a conceptual deterrent to human rights violations, the measures themselves are increasingly undermined. With the exception of a direct referral from the Security Council to the ICC, which has occurred only twice since the Court¡¯s founding in 2002 (the situations in Darfur in 2005 and Libya in 2011), ICC operations are entirely reliant on the compliance of member States. Notwithstanding the blatant non-compliance of States parties to the Rome Statute, including failures of States parties to apprehend individuals with a warrant of arrest while within a State¡¯s territory, there has recently been an unprecedented and extremely worrisome trend of withdrawals from the Court.? Since October 2016, Burundi, South Africa, and the Gambia have withdrawn from the ICC (although the president-elect of the Gambia has since voiced his intentions to remain in the ICC), and the Russian Federation, having previously signed but not ratified the Rome Statute, has rescinded its signature from the Statute.

Chapter VII

Where there is sufficient evidence that mass atrocity crimes have been committed with intent, and non-military measures have done little to offer civilian protection, the Security Council may, as a last resort, invoke Chapter VII, authorizing the use of force. The Council has grown increasingly reliant on Chapter VII mandates, as the greatest threat to international peace and security is currently posed by hydra-headed non-state military actors who cannot be held accountable under international human rights and humanitarian laws through traditional means. Terrorism, which robs populations of the most fundamental human right¡ªthe right to life¡ªhas, to a considerable extent, been responsible for shifting the burden of action from the human rights machinery to the Security Council, primarily due to the machinery¡¯s inexperience and incapacity in dealing with non-state actors.

The Long Road Ahead

Human rights violations occur continually around the world, and a designated human rights mechanism has now been in place for several decades. The assessment of the Security Council¡¯s effectiveness with regard to human rights has been understandably made in terms of human rights considerations incorporated in its many resolutions. Given, however, the other machinery in place to address human rights violations, the ultimate test of the Council¡¯s effectiveness should surely lie in its ability to prevent mass atrocities. That can be the only yardstick providing the template for making assessments of the Security Council¡¯s ultimate effectiveness. In other words, another mass atrocity could wipe off whatever success the Council has registered on human rights promotion in its other work. Syria is already a festering sore.

Long before the threshold for Council action has been breached, the?? most fundamental promotion of international human rights norms must emanate from within state borders through people-centric?? governance structures and the strengthening of domestic human rights institutions. The discussion surrounding the relationship between the Security Council and human rights¡ªoften one of reactive action¡ªmust be paired with a discussion on the relationship between the State and prevention. Only through this two-tiered approach can we ensure the seldom-met conditions for invoking military action, and that the intensity of human rights violations does not necessitate Council action. ?

With research inputs from Ariun Enkhsaikhan, presently Researcher at the Center for International Human Rights in New York. She was also a colleague of the author at the International ¹ú²úAV Institute in New York from 2014 to March 2016.