How quickly a year goes when the international architecture is coming down around your ears

by Rhodri C. Williams

Its not really the twelve months since Maidan that counts. Sure, that was heady, scary stuff, a slightly compressed version of the astonishments of Tahrir, but with every reason to be aware this time of just how quickly the other shoe was likely to drop. The anniversary of real note will come in March, at one year since we realised the magnitude of that other shoe. To wit – a permanent, nuclear-armed member of the UN Security Council engages in aggression against a neighbouring country. Thump.

I was probably less surprised than some. Before moving to Stockholm in 2009, I’d lived in Finland for five years, where I grew used to neighbourly behaviour ranging from aerial incursions to shock increases in finished wood duties that doubled the cost of a house extension. So when the Swedes suddenly woke up to Russian submarine raids, simulated bombing runs and other anti-social behaviour, it felt a bit like deja-vu.

The difference between then and now is of course Crimea. An aerial incursion on its own is a misdemeanour. But a pattern of incursions by the country that just jettisoned the taboo against aggression is in a different category. And, without justifying Iraq in 2003 for a moment, there really is no comparison. If Bush had formally annexed Saskatchewan to punish Canada for withdrawing from NAFTA, maybe then we could talk.

The silver lining in all this is that Putin’s regime is exposing itself as a rogue government rather than actually rolling back the non-aggression norm. For a sense of what the world would look like if Russia was the rule not the exception, one needs to look to earlier anniversaries. In my research on the Åland Islands of Finland, for instance, I came across a 77-year old article from the Spectator setting out a far more unruly Baltic in which the centrally-located archipelago constituted “the most important strategical issue in Northern Europe.”

At the time, various groupings involving Sweden, Germany, Russia and forces in Finland actively considered occupying and re-militarizing Åland in order to pre-empt the damage that could result from others doing it first. In effect, security was to be won at the expense of your neighbours rather than achieved in cooperation with them. Tensions around Åland never fully went away as indicated by recent revelations (here in Swedish) that Sweden maintained a secret occupation force in case the Soviet Union were to invade Finland.

But we truly are living in a different world now than in 1938, and one in which collective security is being tested as rarely before, but remains an article of faith. A striking example comes from Ben Judah’s recent reportage in Politico on the long lead-up to the annexation of Crimea. Former Polish foreign minister Radek Sikorski describes attempts in 2013 by Russia to offer Poland a stake in the partition of Ukraine – an offer that fell entirely flat in a democratic country that had long since oriented itself toward European integration:

Russia has attempted to involve Poland in the invasion of Ukraine, just as if it were a post-modern re-run of the historic partitions of Poland. “He wanted us to become participants in this partition of Ukraine,” says Sikorski. … This was one of the first things that Putin said to my prime minister, Donald Tusk, [soon to be President of the European Council] when he visited Moscow. He went on to say Ukraine is an artificial country and that Lwow is a Polish city and why don’t we just sort it out together. Luckily Tusk didn’t answer. He knew he was being recorded.”

The fact that Russia’s behaviour increases and emphasises its isolation will remain cold comfort as long as it remains unclear what Putin really wants. If, as some maintain, he just wants de facto security guarantees, then Minsk II can be the end of the Ukrainian conflict if the West can show enough strategic patience to calm the situation down. If as others claim, he will continue to push as far as he can go on every front, then Western strategic patience will be seen as encouragement. Hard not to be somebody’s useful idiot in this brave new world.

International Humanitarian Law more clear and more debated than ever – updated

by Rhodri C. Williams

The immediate inspiration for this post was the fact that the International Committee for the Red Cross (ICRC) recently put online its vast and expanding database on which norms of International Humanitarian Law (IHL) are now deemed to have attained the status of customary international law (CIL), binding on all parties to armed conflicts whether or not they have ratified (or otherwise assented to be bound by) the treaties that give rise to these rules.

The database consists of both a comprehensive listing of the rules now deemed applicable and a compendium of practice, both that which supports the emerging rules and objections against its validity (anyone want to take some wild guesses on what states frequently feature in the latter category?) In the new online version, the practice of some seven further states and a number of international tribunals have been added. The new database constitutes a highly accessible and useful tool alongside ICRC’s additional databases on treaty ratification and application by States Parties.

The good news is that there has been considerable progress in this area. I have written on this blog and elsewhere about the role of soft-law documents like the 1998 UN Guiding Principles on Internal Displacement in consolidating a human rights based approach that has transformed humanitarian action in the post-Cold War period. This transformation has brought new possibilities for advocacy by pairing the cautiously phrased and state-centric provisions of IHL with the less ambiguous and more individual-oriented rules of international human rights law (IHRL).

Moreover, because advocacy for the Guiding Principles has focused on engaging willing states (at the risk of to some extent being co-opted by them), they have been far more successful than most soft-law standards, to the extent of having been incorporated in numerous national laws and policies (compiled by the Brookings Institution here) as well as a groundbreaking regional convention adopted by the African Union. This, in turn, has provided support for customary IHL to more vigorously address areas such as the prohibition against arbitrary displacement (including in internal conflicts), the right of voluntary return for internally displaced persons (IDPs) as well as the state obligation to respect their property rights.

However the new force and reach that a rights-based approach has given to IHL has brought new risks as well. Most obviously, by encouraging humanitarian actors to condemn violations of human rights (such as forced displacement) and demand accountability and remedies (such as restitution), the rights-based approach may create dangerously high expectations on the part of beneficiaries of aid while simultaneously undermining the perceived impartiality of humanitarian actors. In the worst cases – and we do not have to look far to find them – this limits the access of humanitarian actors to vulnerable populations and puts their own security at risk.

As a result, this ongoing retrenchment of the rules of conflict has opened up new policy debates, most recently in the extremely difficult humanitarian arena of the Syrian conflict. The latest iteration came with the 28 April 2014 publication of an open letter signed by 35 eminent legal scholars. The letter noted that 3.5 million civilians – over a third of those in urgent humanitarian need in Syria – are living in areas accessible only from neighbouring countries. However, because Syria has denied consent to humanitarian actors operating in Syria to send cross-border aid, these civilians face a catastrophe.

Land grabs jeopardize peace in Sri Lanka

by Christina Williams

Christina Williams is an attorney and founder of Reinventing the Rules, a website dedicated to covering the latest trends and lessons learned in the rule of law sector. She has worked on human rights campaigns related to Sri Lanka for several years and is currently focusing on women and land rights in the region.

The end of the 25-year armed conflict in Sri Lanka in May 2009 signaled what many in the international community hoped would be the beginning of a new era marked by peace and reconciliation. Over the past five years, however, one of the key instigators of the civil war has resurfaced. Land grabs, which were systematically taking place prior to the armed conflict, are once again accelerating at a frightening pace. Shielded by the rhetoric of security and development, the rise of land grabs has left few positive prospects for long-term peace and stability.

Who is behind the land grabs?

The Sri Lankan military, sanctioned by the Government, has played a primary role in confiscating public and private land from the Tamil population, which predominantly inhabits the North and East of the island. Despite the end of the war, militarization of Tamil areas has been the main reason land grabs continue unabated.

In 2008, during the latter stages of the armed conflict, Sri Lanka reportedly had a force of 60 soldiers for every 1,000 civilians or 1 soldier for every 16.6 civilians in the North. In July 2012, the Economic and Political Weekly of India estimated that there is a “ratio of 1 security personnel for every 5.04 civilians in the Northern Province.” The military, which is almost entirely composed of ethnic Sinhalese from the South, includes at least 15 army divisions and personnel from the navy, air force, civil defense force, intelligence, police, and special task force. This conservative estimate roughly translates into 198,000 soldiers or 70% of the security personnel in 14% of the country. View a map of militarization in Sri Lanka here.

The trend towards militarization has only increased with Sri Lanka’s defense budget for 2014 reported to be the highest allocation of funds thus far, at $1.95 billion or 12% of the country’s total spending.  The rate at which militarization grows in Tamil areas five years after the war ended is a concerning trend given the significance land played as one of the root causes of the war. Land will likely continue to play an important role in determining whether peace and a return to normalcy can be achieved.

Tactics used to seize land

The seizure of land marked as high security zones (HSZ) during the conflict and the unwillingness to return much of this property to the thousands who were displaced has contributed to the slow return to normalcy in the former war zones. While some of the HSZ have been disbanded, existing HSZs still occupy significant amounts of valuable agricultural land and no one other than the army is allowed to enter, including elected officials. During the war the legality of the HSZs rested on emergency regulations, which have now been repealed. Five years after the end of conflict, there is no clear legal basis for the remaining HSZ.

Since the armed conflict ended, the military has continued to confiscate public and private land largely under the pretext of security. While many military camps have been created for the army and navy, the government has also resettled thousands of Sinhalese soldiers and civilians from the South in Tamil areas by incentivizing them with free land and permanent housing. This is occurring while 57% out of 138,651 households already residing in the North remain in transitional or emergency shelters while only 32% have permanent homes. Consequently, land grabs are reigniting fears of a concerted effort by the government to change the demographics of Tamil areas in the North and East. 

Guest-posting at Opinio Juris – Åland and Crimea as distant cousins

by Rhodri C. Williams

I am grateful to the editors at Opinio Juris for facilitating my debut there as a late addition in their Insta-Symposium on the Ukraine crisis. My guest-post (accessible here) focuses on the question of whether the settled autonomy and demilitarization regime in the Åland Islands of Finland hold any lessons for the Crimea crisis. As such, it builds both on my ongoing research on the Åland autonomy and on my more recent commentaries on self-determination issues in the Ukraine crisis.

The Ukraine crisis is really only the latest in a series of post-Cold War crises that have unraveled all the constructive ambiguity built into the UN Charter, slinging concepts like territorial integrity, self-determination and non-aggression into one unhealthy mix and shaking vigorously. As pointed out by Thomas de Waal in the Wall Street Journal, the crisis also invokes many of the baroque debates surrounding sovereignty, regional integration, secession and devolution floating around the EU as Scotland and Catalonia contemplate their futures.

It can all seem dispiriting, but in the midst of the gloom it can be helpful to be reminded that there have been ostensibly intractable and potentially catastrophic geopolitical conflicts that have been successfully resolved, such as the Åland Islands question in the 1920s. And curiously enough, the deeper I dug, the more resonances I seemed to find between the Åland case and that of Crimea in Ukraine. But you, dear reader, should be the judge…

Talks collapse in Geneva, reconciliation blooms in Syria?

by Rhodri C. Williams

It is hard to read Syria these days. Hard to look as one horror rolls into another. And hard to understand the dynamic this creates in a population that knows something better, wanted something more and did nothing to deserve what they ultimately got. So, predictably, the day after I speculated that the Geneva talks risked become a pretext for a final ethnic cleansing of Homs in the guise of a humanitarian ceasefire evacuation, the talks collapsed and the ceasefire apparently continued.

Subsequent reporting, particularly by the BBC’s Lyse Doucet, has provided a much clearer picture of how the humanitarian operation in Homs went, with UN personnel and the Syrian Arab Red Crescent (SARC) showing both courage and ingenuity in the face of direct targeting, most likely by pro-Assad regime militias:

Sources confirmed these attacks were the work of a local paramilitary group known as the National Defence Force determined to scupper a deal it saw as feeding and freeing their enemies. “All the devils in this crisis will always try to hinder our work,” Sarc’s head of operations, Khaled Erksoussi, told me on the telephone line from Damascus with a voice tinged with exhaustion and anger.

There are no angels in this war, only what one aid official called “good people in a very bad situation” on both sides of a bitter divide were determined to carry on.

By Wednesday, lessons had been learned. On the edge of the Old City, bundles of food and medicine were unloaded from lorries, and passed along a chain of Sarc volunteers on to two trailers. Supplies would be towed in by the UN’s armoured vehicles.

One of the most sensitive aspects of the operation involves the fate of about 300 “fighting age” men who left the besieged Old City of Homs along with the rest of the civilians evacuated. The willingness of the UN to go forward with the evacuation without guarantees of the humane treatment of fleeing men has been controversial from the outset. This issue, along with the failure of the regime to guarantee humanitarian access to other besieged areas and detention centers, led the ICRC to publicly withhold its support for the operation in Homs:

Evacuations are not the solution to every humanitarian problem, although the Syrian authorities and opposition groups must allow civilians to leave for safer areas. Those who, for whatever reason, choose to stay in their homes remain protected by international humanitarian law and must not be attacked. ….

Anyone detained after an evacuation must be treated humanely at all times and be allowed to contact their families. In addition, our delegates should be allowed to register detainees so that we can follow up on their fate and whereabouts and restore and maintain family contact whenever necessary. We continue to negotiate with the Syrian authorities and other parties to have access to places of detention across the country.

However, as reported by both Doucet and the Wall Street Journal’s Sam Dagher, events took an unexpected turn early, beginning with a decision to release nearly one third of the detained men who signed “a pledge never to bear arms against the state”. As Dagher notes here, such leniency flows from the highest levels of the regime and involves a willful effort to recast the traumatized detainees as born again-Assad supporters, graciously spared the consequences of their own foolishness: 

The Bosnia dilemma: What are the implications of the Homs “humanitarian evacuation” in Syria?

by Rhodri C. Williams

The evacuation of civilians trapped, shelled and nearly starved by the Assad regime’s siege of the center of Homs is an operation that will undoubtedly save many innocent lives. Not incidentally, it is also one of the few areas of concrete progress that appears to have emanated from the Geneva talks between the regime and the opposition, which just entered a laborious second round. But it is hard to avoid a sense of unease about the operation and the signals it sends about the course of the conflict in Syria.

Tellingly, the evacuation deal was rolled out between Geneva I and II, with the opposition apparently caught unawares. This ambiguous start might reasonably be seen as signaling yet another iteration of a high stakes game being played by a discredited regime with its back to the wall. As in the case of last summer’s chemical weapons attack – which made the Assad regime the ‘partner’ in an international effort to dispose of its own illegal weapons – there is a whiff of deliberate atrocities in Homs being used to gain leverage.

Concerns have been expressed on at least three levels. First, the evacuation presents the remaining ‘fighting age’ men trapped in Homs with a Hobson’s choice – remain in the besieged center after the ceasefire expires and continue to face starvation and shelling, or surrender to the tender mercies of the regime’s intelligence forces, who continue to hold some 200 men arrested as they joined the humanitarian exodus from the city. This against the backdrop of continued unresolved questions questions about the fate of men starved out of the Damascus suburb of Mouadamiya last year:

Rebels have rejected offers to evacuate women and children in the past because of concerns, based on experience, about what might happen to men who are left behind. Dozens of men were detained and disappeared after a similar deal made last year in Mouadamiya, near Damascus.

In light of graphic recent evidence that a single detention center in Syria had tortured 11,000 imprisoned men and boys to death, it is hardly surprising that comparisons have been made between the evacuation of Homs and the 1995 fall of Srebrenica in the Bosnian conflict. As in Srebrenica, the means and motive exist. Moreover, the international humanitarian community is caught in a similarly impossible role, trying to protect civilians in a situation where it will not have the power to do more than act as a witness if the regime is determined to seek a final reckoning with its opponents in Homs.

Which leads to the second concern.

A little more on the rule of law and development debate

by Rhodri C. Williams

A few weeks back, I wrote about some good news, namely the evidence that rule of law efforts – instilling accountability and legal certainty through support to formal adjudicatory institutions – is central to equitable development. As well as some bad news, that being that said evidence was difficult to measure and therefore of lesser interest to those development donors fixated on checking the log-frame boxes.

Since then, a few more iterations of this debate have crossed my desk, both of which underscored the significance of rule of law to development – and particularly the post-2015 Sustainable Development Goals (SDGs) – and sought to push back on the measurability issue. First was Mo Ibrahim on Project Syndicate with an appeal to African leaders to push for the explicit inclusion of rule of law in the SDG process. Citing concrete cases of local civil society and expert efforts to resolve disputes, title land and prevent corruption, Mr. Ibrahim concludes that:

This is the rule of law in action at the local level, and it is building, often from scratch, a culture in which disputes are settled peacefully and benefits distributed transparently. The alternative – recourse to violence in the face of unequal access to resources – has led to a cycle of political instability in many countries, with the consequent lack of economic development that has come to characterize much of Africa’s recent history.

As the debate on the post-2015 Sustainable Development Goals unfolds at the United Nations this year, it is my fervent hope that African governments will endorse the inclusion within these goals of measurable targets for access to justice. To be sure, the dominant themes that are emerging in the UN discussions – jobs, economic growth, infrastructure development, and poverty reduction – are all still desperately needed across the continent. But the rule of law is a fundamental principle that does more than promote economic growth, and it would be a serious mistake not to include it in the SDG agenda.

In a very similar vein, Namati has circulated an open letter to the UN General Assembly promoting attention to rule of law and access to justice in the SDGs. Like Mr. Ibrahim, Namati notes that rule of law efforts are crucial to securing a broad variety of rights. These range from more civil and political rights concerns like freedom from structural violence (the focus of the Gary Haugen Op-Ed I blogged on earlier) to more traditionally economic and social concern such as access to and secure tenure in land. To quote Namati:

Approximately three billion people around the world live without secure rights to what are often their greatest assets: their lands, forests, and pastures.  Increasing demand for land is leading to exploitation and conflict.  Giving communities the power to manage their land and natural resources would reduce poverty and promote sustainable development.  Securing property rights for all individuals, including women, is necessary to improve financial stability and personal safety.

Interestingly, Namati not only note that inclusion of rule of law in the SDGs would be perfectly consistent with many previous UN statements and resolutions, but also rebut the measurability issue head on as one of their central advocacy points:

Where legal empowerment efforts take hold, the results are visible and quantifiable.  Women in Bangladesh who challenge the practice of illegal dowries are reporting greater cash savings.  Due to the work of community-based paralegals, grievances in Liberia are being resolved more equitably, resulting in greater food security. Prisoners in Kenya have returned to jobs and families after successfully appealing their sentences.

The emphasis on “visible” as well as “quantifiable” strikes me as astute. One of the unsatisfying aspects of sheer quantification is that it can be blind to context. Measuring the number of judicial decision referring to international human rights standards is fine, for instance, but do the rulings properly apply the standards or misinterpret them to abusive ends? And who is to be the judge of that, and on what criteria? And in either case how many such decisions actually survive appeal?

Sustained engagement with a particular development setting is not a guarantee of good analysis, but provides an opportunity for sensitivity to context and local dynamics that would not otherwise arise. The results can provide visible evidence for those minded to see it, but whether this will always be quantifiable is another question.

Demonize the messenger – UN Housing Rapporteur accused of witchcraft

by Rhodri C. Williams

So here is the scenario. A wealthy Western country is early out in 2001 in extending a standing invitation to UN human rights rapporteurs to visit anytime they like. In doing so, they are taking up a Quaker initiative premised on the idea that the first step toward respecting human rights is willingness not be defensive about one’s own record.

Twelve years later, the UN Rapporteur on the right to housing announces the first visit by her mandate to said country, at a time of economic recession. Her initial PR and a subsequent set of preliminary findings praise the host country’s tradition of housing assistance for the poor and provide a reasoned set of criticisms of recent measures to deregulate private rental markets and ensure more efficient use of public housing stocks.

The response? Pandemonium. The chairman of the main party in the governing coalition speeds a letter to the UN Secretary General claiming that the rapporteur arrived uninvited, ignored the relevant government ministers and issued politically biased findings, suggesting “that the UN withdraw her claims” until a “full investigation” is carried out.

A national tabloid accuses her of being a Marxist witch while a conservative columnist is pleased to merely dismiss her as an idiot and a “Brazil nut”. She, of course being the (Brazilian) UN rapporteur Raquel Rolnik, and they being the Right Honourable conservative commentariat of the United Kingdom.

So. How has it come to pass that the United Kingdom, with its Magna Carta and its mother of parliaments is unable to engage in a reasoned dialogue with a UN human rights official? To express mild concerns about her criticism, promise to study them and let them slide gently toward the circular file like everyone else? Or conversely, why draw unnecessary attention to the report by engaging in shrill denunciation of UN activism (not to mention sexist and arguably racist ad hominem attacks on its author)?

A problem from hell for the 2010s

by Rhodri C. Williams

In listening to the Obama administration’s latest contortions on the ever-shifting red-line in the face of ever-clearer evidence of the use of chemical weapons by the Syrian regime, it is hard not to be transported back in time to another Democratic administration facing another problem from hell twenty years ago.

In 1994, it was President Clinton facing a similarly impossible red line in Rwanda, unable to publicly recognize the brute reality of what was happening on the ground because of the legal responsibility it would entail to intervene. As described here by the Guardian in 2004, it would take a decade for the obvious to become a matter of public record:

President Bill Clinton’s administration knew Rwanda was being engulfed by genocide in April 1994 but buried the information to justify its inaction, according to classified documents made available for the first time. Senior officials privately used the word genocide within 16 days of the start of the killings, but chose not to do so publicly because the president had already decided not to intervene.

Meanwhile, as the assault on moderate Hutus and any Tutsis continued, officials in Washington, D.C. were reduced to the demeaning sophistry of discussing formulations rather than condemning mass-murder. For a sobering  reminder, witness the agonies of State Department spokesperson Christine Shelly in April 1994:

In Rwanda, as in Syria, there were tremendous risks associated with intervention and little domestic political support for becoming bogged down in another sticky regional conflict. Indeed, in Syria, commentators are only beginning to awaken to the historical complexities that have shaped the region, providing a more accurate accounting of the difficulties that would face any intervention while at the same time feeding the risk of dismissive ‘ancient ethnic hatreds’ narratives of the type that arguably delayed a meaningful international response to the crises in the former Yugoslavia and Rwanda.

The Human Rights Advisory Panel holds the UN in Kosovo responsible for failing to investigate forced disappearances – too little, too late?

by Massimo Moratti

In the uphill struggle to ensure the accountability of international organisations and in particular of peacekeeping missions, the recent decision in S.C. against UNMIK issued by the UNMIK Human Rights Advisory Panel (HRAP) can definitely be considered a landmark case.

The HRAP is the body tasked in 2005 with examining complaints of alleged human rights violations committed by or attributable to the United Nations Interim Administration Mission in Kosovo (UNMIK). In doing so, the Panel applies the European Convention on Human Rights (ECHR) as well as other key global Human Rights conventions, and makes non-binding recommendations to the Special Representative of the Secretary-General (SRSG) in charge of UNMIK.

UNMIK was established following the Kosovo crisis of 1999 with full legislative and executive powers for the administration of Kosovo. UNMIK was, tasked under UNSC Res 1244 with “promoting and protecting human rights in Kosovo” and it performed police and judiciary functions until 9 December 2008, when those competencies were handed over to the EU Rule of Law Mission in Kosovo (EULEX).

Disappearances in Kosovo and UNMIK’s inaction.

It is within this context that Ms. S.C. lodged her complaint. Ms. S.C. was the wife of Ah.C and mother of An.C. On the 18 July 1999 An.C and Ah.C. while working at their family business in Prizren were ordered by three uniformed Kosovo Liberation Army (KLA) members to follow them to do some work. The KLA members said they would be back within half an hour. Their bodies were recovered one year later, in August 2000, by ICTY investigators near the Prizren cemetery. It was only in 2003 that M.C., the other son of the complainant, received the bodies of his father and brother after UNMIK had issued confirmation of identity certificates.

Ms. S.C. complained on several occasions, but the investigations conducted by UNMIK led to nothing. Although the bodies were recovered in 2003, the two persons were still considered as missing in the UMNiK investigation file as late as 2007. The complainants therefore alleged a violation of procedural limb of the Article 2 of the ECHR, i.e. the right to life, as well as a violation of the Article 3 of the ECHR for the mental pain and suffering allegedly caused by the situation.