Address by Ms. Navanethem Pillay, UN High Commissioner for Human Rights to the protection of human rights in armed conflict: A decade after UNSC resolution 1265

August 2009
Alpbach, Austria


Ambassador Mayr-Harting,
Excellencies,
Ladies and Gentlemen,

I am pleased to participate in this important stock-taking discussion on the United Nations Security Council and the protection of civilians in armed conflict since resolution 1265 (1999). Indeed, a decade after the Security Council’s initiative, it is imperative to evaluate progress and shortcomings in our responses to alleviate the suffering of the civilian population caught in the midst of violent strife.

In the course of the last decades, millions of civilian lives have been claimed by both international and internal wars. Tens of millions of non-combatants have been injured or permanently displaced. Homes have been destroyed; access to food, medicine and shelter has been denied. Often armed competition in ruthless pursuit of economic interests and appropriation of resources has made a mockery of the fundamental humanitarian concept of inviolability of civilians.

Grave violations of human rights and international humanitarian law have been a tragic common denominator in these conflicts, as civilians became the primary targets of attacks often motivated by ethnic or religious hatred, and by political confrontation. It has been estimated that the ratio of civilian versus military casualties during the internal conflicts of the 1990s was inversely proportional to that of the two World Wars, or 70 percent versus 30 percent.

Discussions of protection of civilians by the Council have been expanded over time from their limited scope of dedicating additional efforts to the suffering of civilians in ongoing armed conflict. With a view to the increasing protection demands on the UN, following in particular the events in Rwanda and Srebrenica, protection of civilians was described as an ‘umbrella concept’ of humanitarian policies that brings together protection elements from a number of fields, including international humanitarian and human rights law, military and security sectors, and humanitarian assistance.
Over the years, the Security Council, the General Assembly, the Commission on Human Rights and, more recently, the Human Rights Council have reminded us that in situations involving armed conflict, parties to the conflict have legally binding obligations concerning the rights of persons affected by the conflict under, both, international humanitarian and human rights law. In this regard, the question of protecting human rights in situations of armed conflict is, in fact, not new in the practice of the United Nations.
The Security Council’s adoption in 1999 of resolution 1265 on the protection of civilians in situations of armed conflict was, to a certain extent, the result of a process initiated in the International Conference on Human Rights in Teheran in 1968, in the context of the International Year for Human Rights.
That same year, the United Nations General Assembly requested the Secretary-General to prepare a study on the question of respect for human rights in armed conflict. General Assembly resolution 2444 (XXIII), Consequently, several reports by the Secretary-General were submitted to the General Assembly. During the 1970s the General Assembly continued to affirm the need to secure the full observance of human rights in armed conflict. In particular, the General Assembly affirmed in resolution 2675 (XXV) that “fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict.”
For its part, the Security Council has included human rights considerations in its resolutions dealing with specific country situations where international peace and security is at risk. Already in 1967, the Security Council considered that “essential and inalienable human rights should be respected even during the vicissitudes of war”. Security Council resolution 237 (1967) of 14 June 1967.

Since the 1990s the Security Council has further developed its practice of including human rights considerations in its resolutions related to situations of armed conflict. In the case of Sierra Leone, for example, the Council asked that “all factions and forces in Sierra Leone … respect human rights and abide by applicable rules of international humanitarian law.” Security Council resolution S/RES/1181. Similar concerns and exhortations were expressed in the resolution dealing with the situation in the Democratic Republic of Congo. In the case of Afghanistan, the Council called for “full respect for human rights and international humanitarian law throughout Afghanistan.” Security Council resolution S/RES/1746. On various occasions, for example concerning the situation in Somalia, the Security Council has also condemned violations of human rights and humanitarian law during armed conflict and has asked for accountability regarding reported violations.

This stance was further elaborated when the Security Council called for an end to “the climate of impunity” in Darfur. It also expressed the need to identify and bring the perpetrators of widespread human rights abuses and violations of international humanitarian law to justice. Security Council resolution S/RES/1564. Moreover, the Security Council recognized that development, peace and security and human rights are interdependent and mutually reinforcing. It further noted that the commission of systematic, flagrant and widespread violations of international humanitarian and human rights law during armed conflict might amount to a threat to international peace and security.

Allow me to underscore that the Security Council has also directed its focus to specific civilian groups, including women and children, whose vulnerability is exacerbated by war.


Ladies and Gentlemen,

It is important to note that in his 2007 report on the Protection of Civilians in Armed Conflict, the Secretary-General underscored the need for the Security Council to call upon parties to conflict, and upon the multinational forces that the Council dispatched, to uphold their international humanitarian law and human rights obligations. S/2007/643, para. 25.

With the adoption of the Statute of the International Criminal Court in 1998, the Security Council has been given an active role in the fight against impunity for crimes of genocide, war crimes and crimes against humanity. In this respect, the ICC Statute foresees that the Security Council, acting under Chapter VII, may refer to the Court situations in which one or more of such crimes appears to have been committed. In the exercise of this power, the Security Council referred to the Prosecutor the Darfur situation in resolution 1593 (2005), in which it affirmed that justice and accountability are critical to achieve lasting peace and security in Darfur.

Accountability has been accepted as an important element of the protection of civilians. However, conflict and post-conflict countries often lack effective accountability mechanisms and the establishment of basic rule-of-law institutions requires time. In some situations, the Council applied sanctions on the violation of human rights and humanitarian law. In the case of Sudan, as mentioned, the Council referred the situation to the ICC. However, these mechanisms will only apply to a very limited number of suspects. Commissions of Inquiry, as established by the Council in the case of Darfur and Cote d’Ivoire, could have broader application in establishing facts and making recommendations for the prevention of impunity. Measures of the Council could also include temporary institutions to combat impunity and prevent revenge killings. OHCHR could offer expertise in this regard.

Distinguished Participants,

As I noted previously, the General Assembly has been actively involved in the progressive development of human rights in all contexts, including in situations of armed conflict. In its Millennium Declaration, the General Assembly resolved “to ensure the implementation, by States Parties … of international humanitarian law and human rights law.” Furthermore, it urged all States to adhere to the International Criminal Court. Ibid, para. 9. Significantly, at the 2005 World Summit, the General Assembly reiterated member States’ commitment to the protection of human rights, including the responsibility of each individual State to protect its populations from the worst crimes.

The Security Council discussed the R2P almost exclusively in the context of the protection of civilians. However, in its current definition, the concept of protection of civilians is both broader and narrower than R2P. It is broader as far as it includes a broad set of violations of human rights and humanitarian law, while R2P is limited to a specific set of crimes. It is narrower as it limits the attention to violations occurring at least in the broader context of armed conflict, while genocide and crimes against humanity could be committed independent of such situations. Furthermore, R2P is based on the consensus that the international community must not remain neutral in situations of mass atrocities.

On 21 and 23 July 2009, the GA discussed the implementation of the R2P with a view to the respective SG report. While some fundamental differences on sovereignty and the role of the UN could not be overcome, Member States agreed on the importance of prevention and effective UN response to unfolding situations, within existing mandates, as recommended by the SG in the Annex to the report.

As indicated in my statement on the R2P, it would be important to develop a toolbox of possible UN action in situations of imminent or ongoing large-scale violations of humanitarian or human rights law. Such a tool box would provide the Council with options and, thus, take away many concerns related to the R2P, while responding as well to the core challenges of the protection of civilians.

Excellencies,

The Commission on Human Rights and the Human Rights Council, its successor body, have been the leading intergovernmental human rights institutions. Thus, both the Commission and the Council have consistently regarded the scrutiny of human rights violations committed in the context or armed conflict as falling within their purview.

The Commission, for instance, adopted a number of resolutions referring to human rights violations in the context of armed conflict in Afghanistan, Burundi, Colombia, Palestine, and Uganda, among others. In resolution 2005/63, the Commission also emphasized that conduct that violates international humanitarian law, or the laws of war, may also constitute a gross violation of human rights. This resolution may be seen as the cornerstone of the Human Rights Council’s work in the protection of human rights in armed conflict situations.

Indeed, the Human Rights Council has followed the same approach of its predecessor, underscoring that the obligation to protect can not be waived in armed conflict situations. In such situations, the Council held, combatants must ensure that effective measures are put in place to guarantee and monitor the implementation of human rights. This protection extends to all civilians, including those under foreign occupation.

In view of this wealth of practice, it is not surprising that the International Court of Justice (ICJ) has moved in the direction of recognizing the importance of protecting human rights in situations of armed conflict, both in its advisory opinions and in its contentious cases. As recent practice shows, the ICJ is increasingly being requested to apply human rights standards to situations of armed conflict. The Court, in its judgment in the case of the Democratic Republic of the Congo versus Uganda, included the criteria defined in The Wall advisory opinion on the barrier erected between Israel and the West Bank. This opinion concerned the complementary application of international human rights law and international humanitarian law in situations of armed conflict.

In a similar vein, the International Criminal Court, as demonstrated in its most recent decision regarding the situation in Darfur, has also recognized the importance of human rights in armed conflict. To reach this conclusion, the Pre-Trial chamber relied on information provided by human rights organizations, including my Office.

In sum, the practice of the different institutions has progressively and unequivocally clarified the fact that protecting human rights in situations of armed conflict is not a merely theoretical issue. The impact of this understanding on the ground is visible on a daily basis, and it is potentially of great consequence.

As I have described, the ten years that have followed the adoption of Security Council resolution 1265 have provided a wealth of institutional practices and approaches for the protection of civilians in situations of armed conflict. Questions of implementation and monitoring of human rights obligations in such situations, as well as the issue of accountability for violations, await more consistent and effective responses.

The protection of civilians affected by conflict is an essential element of any meaningful conception of peace and security. But equally important is the recognition that, when the Council enters into questions of protection, it must accept a duty of due diligence to treat these matters with a level of care and rigor befitting their status as matters, essentially, of life and death. This means eschewing amorphous conceptions of protection in favor of greater normative and conceptual clarity, by recognizing that, when we say “protection”, we are talking about protection of the human rights of individuals as contained in international law – including international human rights law, international humanitarian law, international refugee law and international criminal law. It also means mandating institutional arrangements on the ground that ensure coherence rather than fragmentation, with robust human rights components in UN peace missions, mandated and resourced to provide effective protection to the full range of vulnerable persons and groups in conflict and post-conflict countries. It means raising the concrete possibility of accountability for perpetrators of war crimes, crimes against humanity and other gross violations of human rights, and signaling, in a clear and unified voice, that impunity will not stand. And it means mobilizing a higher level of political will among Council members and the broader international community to take timely and effective action to prevent these atrocities, protect the vulnerable, hold perpetrators to account, and ensure redress for victims.

The protection of civilians in armed conflict will be significantly advanced when perpetrators understand that impunity is no longer a possibility, when they witness first hand that the law—as well as rhetoric and good intentions—is translated into action on behalf of the victims.

Since the late 1990s, successive High Commissioners for Human Rights have briefed the Council on matters relating to the protection of civilians in armed conflict. These briefings have served to share the expertise and information available within OHCHR, including from our monitoring and investigations in the field. We remain committed to continuing our support for the Council, and to strengthening the flow of crucial human rights information and analysis from our fact-finding capabilities to inform the Council’s deliberations. I am convinced that the response capacity of the Council would be enhanced by an ongoing dialogue with my Office.

Thank you.