Human rights

Security and justice programming often takes place in challenging environments characterised by transitional and unstable political leadership, corruption, on-going violence, and attempts to implement open-ended or non-inclusive peace agreements (Schnabel, 2009). Donors will often be working with countries, institutions or actors where concerns about adherence to human rights norms exist (HMG, 2011b) and where human rights violations have been or are being committed by security and justice actors (Galletti & Wodzicki, 2011).

Safety, security and justice are the areas in which citizens’ rights are most at risk of being violated (HMG, 2011b). A state’s obligations to human rights norms entails maintaining an effective and accountable security sector to prevent other actors from violating the rights of citizens. Citizens, particularly victims of human rights abuses, are unlikely to trust public institutions that retain or hire individuals responsible for violations or serious crimes under international law. This impairs an institution’s ability to effectively deliver its mandate (OHCHR, 2006). Donor engagement with security and justice providers should ensure that they ‘respect human rights and are not themselves a threat to citizens’ (Nathan, 2008, p. 31).

Challenges

Political will and vested interests: Convincing those in power to undertake reforms to protect human rights is challenging, and it may not be in their interests to do so, especially when the very same actors may be responsible for human rights violations (Galletti & Wodzicki, 2011). As such, there may be a contradiction between donor aspirations and the political realities in many fragile and conflict-affected states (OECD, 2010).

Practical and moral challenges: Donors face dilemmas when considering the need to work with non-state armed groups. Their inclusion in security and justice related initiatives after peace-agreements, such as integration into state security institutions, presents practical and moral challenges, particularly with regards to their human rights record, and their potential to ‘spoil’ security and justice initiatives (Schnabel, 2009).

Non-state armed actors: The presence of non-state armed actors, including rebel groups, militias and criminal networks, poses particular human rights dilemmas and can disturb and undermine peace- and state-building processes, which risks the return of violent conflict. Donor support to strengthen state security and justice institutions can challenge the political and economic agendas of non-state armed groups by strengthening or reconstructing state structures and institutions (Hofmann & Schneckener, 2011).

Approaches

Local attitudes and power relations: Albrecht and Kyed (2011) argue that human rights challenges are related more to local attitudes and power relations than to the types of institutions involved. Social norms dictate gender roles and social status, and belief systems drive human rights violations at all levels of security and justice provision. The promotion of human rights begins by understanding the ‘continuous process of political contestation and social change through which power relations are mediated…. The relations of power that underpin inequalities, including those between providers and users, should be the aim of programming’ (p. 21). As part of this approach, they list the following as key steps:

  • Identify local agents of change and work towards human rights objectives that can be realistically obtained.
  • Empowerment strategies can help facilitate spaces for constructive dialogue where disadvantaged groups and women can be heard and supported to question local practices and cultural norms. Empowerment initiatives can also increase rights awareness amongst vulnerable groups.
  • Support existing social movements and non-government organisations that advocate for human rights.

Human rights assessments: Galletti and Wodzicki (2011, p. 296) stress the importance of assessing the human rights situation to identify ‘constraints that people face in claiming their rights; the specific groups that are most affected; the extent causes and perpetrators of rights violations; the policies that discriminate against individuals or groups; the state’s obligations and breaches of these obligations; and the strategies required to implement policies to respect, protect and fulfill human rights obligations’ (p. 290).

Organisational culture and leadership: Human rights violations within state security agencies can be addressed by supporting changes in the organisational culture, to one where leaders prevent, identify, halt and punish violations. Developing explicit guidelines on permitted behaviour, ending impunity, and encouraging the adoption of a zero-tolerance policy can all contribute. Armed forces often see their participation in international peace support operations as beneficial. This can create an entry point for supporting the adoption of international human rights and humanitarian law standards (OECD-DAC, 2007b, p. 134). Previous human rights abuses can also provide an entry point for encouraging commitment amongst leaders. In the Malawi Police Service, overnight deaths in custody of 16 prisoners detained in a police station contributed to improved internal inspection and accountability procedures, as well as recruitment and training with a greater service orientation (p. 179).

Vetting and personnel reform: In post-conflict or transitional contexts, vetting is often an important element of broader security and justice institution reform, DDR, and transitional justice efforts. Vetting processes assess the integrity of individuals to determine suitability for public employment and to exclude those responsible for serious human rights violations, including perpetrators of GBV (OHCHR, 2006c). Human rights assessments can help determine how to conduct negotiations on issues of vetting and can help establish benchmarks for the individual screening of those undergoing a vetting process (UN, 2012).

Enhancing accountability and oversight: Parliamentary committees, or expert committees reporting to parliament, are often mandated to investigate abuses and to audit the legality of security agency actions. The judiciary is mandated to judge whether the actions of security institutions and actors conform to the constitution and relevant legislation, and whether they infringe the human rights of citizens. Courts can bring legal action against security or justice actors, or can be used by individuals or groups to challenge the legality of security related actions or policy (UNDP, 2008). Ombudsmen or human rights commissions have a mandate to protect and promote human rights according to national legislation and international human rights treaties. They do this by investigating complaints from individuals and groups, monitoring the general human rights situation in a country, educating the public and government, and developing and improving national legislation (UNDP, 2007b).

Supporting CSOs: CSOs have a potentially important role to play in strengthening oversight to address human rights abuses. They can monitor the activities of state institutions on the basis of their adherence to the law and respect for human rights. They have a role in presenting evidence to parliament. They may bring cases to court or provide assistance to individuals to bring their own cases. They may also help publicise the existence of the ombudsman or work jointly with the ombudsman’s staff in monitoring the human rights situation (UNDP, 2008).

Accountability mechanisms for local and non-state actors: Supporting the state to enhance its existing relationships with non-state providers, in order to better regulate and monitor their performance, is a means of improving accountability and addressing human rights deficits. The state has an obligation to establish performance standards and mechanisms, which can provide a basis for exchanging information, auditing, and providing training to non-state actors to address weaknesses in human rights protection (Scheye, 2009). The UNDP (2012, pp. 173-176) outlines the following accountability mechanisms for informal justice providers:

  • Recording case outcomes: Documenting outcomes provides disputing parties with greater legal certainty and strengthens enforcement mechanisms. However, this could in some circumstances distort the flexible nature of informal justice.
  • Systems of referral, appeal and enforcement: Recording can also facilitate the registration or approval of settlements in formal state courts or by appeal.
  • Systems of inspection, monitoring and support: Recording can facilitate monitoring by external parties, including members of the public or official inspectors. External monitoring may be unwelcome in some cases, unless it is developed in careful dialogue with providers and users, and undertaken by persons familiar with the local context and culture.
  • Linkages to paralegals and legal aid providers: Not all informal providers will allow paralegals to act as representatives in proceedings. Where paralegals cannot act as representatives, they can advise individuals involved in those proceedings.

Norm diffusion amongst non-state armed groups: Hofmann and Schneckener (2011) outline a series of ‘constructivist approaches’, which emphasise the role of dialogue and persuasion as a process of norm diffusion. These approaches are useful because armed actors are often concerned with their public image, moral authority, and legitimacy.They break this down into the following processes:

  • Socialisation: involving non-state armed actors in security and justice processes and institutions may, over time, increase the chances of them accepting norms and rules.
  • Naming and shaming: social pressure and public campaigns against certain practices of non-state armed actors may harm their legitimacy within and outside their constituencies.
  • Reconciliation and transitional justice: which present frameworks for armed actors to accept basic norms and critically reflect upon their public-image and their actions.

Tools and guidance

The UK Government and the UN have both published practical guidance on human rights assessments – setting out the human rights and international humanitarian risks to be considered prior to donor engagement along with examples of measures to mitigate risks.

  • HMG Overseas Security and Justice Assistance: Human Rights Guidance (see HMG, 2011b)
  • The Human Rights Due Diligence Policy on UN support to non-UN security forces (HRDDP) (see UN, 2011c)

Guidance on accountability mechanisms for state security agencies:

  • UNDP. (2007b). Monitoring and Investigating the Security Sector: Recommendations for Ombudsman Institutions to Promote and Protect Human Rights for Public Security (see UNDP, 2007b)

Guidance on vetting:

  • OHCHR Rule of Law Tools for Post-Conflict States. Vetting: an operational framework (see OHCHR, 2006)

Guidance on human rights based engagement with local and non-state actors:

  • Informal Justice Systems: Charting a course for human rights-based engagement (see UNDP, 2012)
  • Albrecht, P. & Kyed, H.M. (2011). Introduction: Non-state and Customary Actors in Development Programs. In P. Albrecht, H. M. Kyed, D. Isser & E. Harper (Eds.), Perspectives on Involving Non-State and Customary Actors in Justice and Security Reform. Rome: International Development Law Organisation / Danish Institute for International Studies.
    See document online
  • Galletti, N., & Wodzicki, M. (2011). Securing Human Rights: Shifting the Security Sector Reform Paradigm. In M. Sedra (Ed.), The Future of Security Sector Reform. Ontario: The Centre for International Governance Innovation.
    See document online
  • Hofmann, C., & Schneckener, U. (2011). Engaging non-state armed actors in state-building and peace-building options and strategies. International Review of the Red Cross, 93(883), 603-621.
    See document online
  • HMG. (2011b). HMG Overseas Security and Justice Assistance: Human Rights Guidance. London: UK Government.
    See document online
  • Nathan, L. (2008). The Challenge of Local Ownership of SSR: From Donor Rhetoric to Practice. In T. Donais (Ed.), Local Ownership and Security Sector Reform. DCAF Yearbook 2008. Geneva: Lit Verlag.
    See document online
  • OECD. (2010). The State’s Legitimacy in Fragile Situations: Unpacking Complexity. Paris: OECD.
    See document online
  • OECD-DAC. (2007b). Handbook on Security System Reform: Supporting Security and Justice. Paris: OECD.
    See document online
  • OHCHR. (2006). Rule of Law Tools for Post-Conflict States. Vetting: an operational framework. New York: Office of the United Nations Commission on Human Rights.
    See document online
  • Schnabel, A. (2009). Ideal Requirements versus Real Environments in Security Sector Reform. In H. Born & A. Schnabel (Eds.), Security Sector Reform in Challenging Environments. Geneva: DCAF.
    See document online
  • Scheye, E. (2009). Pragmatic Realism in Justice and Security Development: Supporting Improvement in the Performance on Non-State/Local Justice and Security Networks. The Hague: Clingendael.
    See document online
  • UN. (2011c). The Human Rights Due Diligence Policy on UN support to non-UN security forces (HRDDP). New York: United Nations.
    See document online
  • UN. (2012). Security Sector Reform: Integrated Technical Guidance Notes. New York: United Nations SSR Task Force.
    See document online
  • UNDP. (2007b). Monitoring and Investigating the Security Sector: Recommendations for Ombudsman Institutions to Promote and Protect Human Rights for Public Security. Geneva: United Nations Development Programme/DCAF.
    See document online
  • UNDP. (2008). Public Oversight of the Security Sector: A Handbook for Civil Society Organisations. Geneva: United Nations Development Programme/DCAF.
    See document online
  • UNDP. (2012). Informal Justice Systems: Charting a course for human rights-based engagement. New York: United Nations Development Programme.
    See document online
  • Non-state armed actors are ‘distinctive organisations that are (i) willing and capable to use violence for pursuing their objectives and (ii) not integrated into formalised state institutions such as regular armies, presidential guards, police, or special forces. They, therefore, (iii) possess a certain degree of autonomy with regard to politics, military operations, resources, and infrastructure. They may, however, be supported or instrumentalised by state actors either secretly or openly, as happens often with militias, paramilitaries, mercenaries, or private military companies’ (Hofmann & Schneckener 2011, p. 604).