Honoring human rights : from peace to justice : recommendations to the international community / Alice H. Henkin, editor.

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JHonoring
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Human Rights
From Peace to Justice
Recommendations to the International Community
Alice H. Henkin
Editor
The Aspen ( Institute
Justice and Society Program


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Copyright 1998 by The Aspen Institute
The Aspen Institute Suite 1070 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 Published in the United States of America in 1998 by The Aspen Institute
All rights reserved
Printed in the United States of America
ISBN 0-89843-243-X


The Aspen Institute
Honoring Human Rights From Peace to Justice
TABLE OF CONTENTS
Preface
Alice H. Henkin......................................1
Introduction
Thomas Hammarberg and Patrick Gavigan.................3
Recommendations........................................25
Combining Institution Building and Human Rights Verification in Guatemala: The Challenge of Buying In Without Selling Out Leonardo Franco and Jared Kotler........................39
International Human Rights Operations in Bosnia and Herzegovina Michael O'Flaherty..................................71
After Genocide: The UN Human Rights Field Operation in Rwanda Ian Martin.........................................97
Smaller Missions Bigger Problems
Andrew Clapham and Florence Martin..................133
Staying the Course in El Salvador
Teresa Whitfield....................................163
UN Human Rights Work in Cambodia: Efforts to Preserve the Jewel in the Peacekeeping Crown
Brad Adams.......................................189
Institutionalizing Peace: The Haiti Experience
Colin Granderson...................................227
Contributors............................................257
Participant List..........................................259
in


Preface
This volume is the second phase of a project of the Aspen Institute's Justice and Society Program to reflect on peacekeeping field operations from the perspective of human rights.
A previous volume, Honoring Human Rights and Keeping the Peace: Lessons from El Salvador, Cambodia, and Haiti (1995) was a critique of the early experiences of human rights field missions that were part of larger peacekeeping operations. That study identified troubling issues and made recommendations for ameliorating them.
In November 1996, a small group of the participants in the first phase of the project met to consider whether it would be useful to examine further the relationship between peacekeeping and human rights. There was wide agreement that monitoring human rights and building institutions to secure those rights were intimately connected and that this complementarity was in turn related to peace: If the institutions necessary to sustain human rights were not in place, it was likely that hostilities would resume once the peacekeepers left.
To pursue that concern, The Aspen Institute convened a conference in September 1997, at Mohonk Mountain House, of a small group composed of current and former officers of human rights field missions, senior UN officials, international nongovernmental organization leaders, and representatives of foreign human rights groups. Background papers were commissioned to examine the relationship between human rights and institution building in countries where peacekeeping operations included attention to human rights violations; these were the three in the earlier study, plus three additional countriesGuatemala, Bosnia and Herzegovina, and Rwanda where newer missions had been established. A paper dealing with several countries with smaller operations was also commissioned.
The conference focused on the institutions central to the development of a rights-respecting society: the justice system, the police and penal systems, national human rights institutions and nongovernmental organizations, public education, and methods for addressing past violations.
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Honoring Human Rights From Peace to Justice
The papers (covering events through 1997) were subsequently refined in light of the conference discussions, and recommendations were drafted and agreed upon by the participants.
It is the hope of all who participated in this endeavor that the papers and the recommendations set forth in this volume will encourage and help those in the United Nations, in the member states, and in the wider international community who are working to create a just and peaceful world.
The Aspen Institute is grateful to the Ford Foundation for its continuing support; to Ian Martin for his wise advice; to Patrick Gavigan for his unstinting assistance; and to Carol Murray for all she has done to help bring the project to fruition.
September 1998 Alice H. Henkin
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Human Rights and Post-Conflict Institution Building
INTRODUCTION AND OVERVIEW
The end of the Cold War opened the way for a surge in United Nations peace operations in which human rights field missions have come to play an important role. Adding human rights to peacekeeping began in 1991, when the government and insurgents in El Salvador's long civil war invited the UN to send human rights observers to verify peace accords. The following year, the protection and promotion of human rights became a significant component of UN efforts to rebuild Cambodia after the Khmer Rouge genocide and, in 1993, along with the OAS, to reverse a military coup in Haiti.
In April 1995, The Aspen Institute published an assessment of these first human rights field operations, Honoring Human Rights and Keeping the Peace: Lessons from El Salvador, Cambodia, and Haiti. The report (Aspen I) focused on the role of these missions in the peacemaking process, when verifying the terms of negotiated agreements and monitoring respect for human rights were crucial for ending hostilities and securing a stable peace. The report identified shortcomings in the human rights operations and included recommendations for improving future missions.
A number of important changes in peacekeeping operations since Aspen I made a new assessment of field missions appropriate. First, the UN has gained substantive additional experience in El Salvador, Cambodia, and Haiti and with newer missions in Guatemala, Bosnia and Herzegovina, and Rwanda. Thus, the number of major cases for study has expanded from three in 199495 to six today, providing a wealth of new information. Other human rights efforts in Abkhazia (Georgia), Angola, Burundi, the Democratic Republic of Congo (formerly Zaire), Colombia, Gaza, and Liberia have also provided useful lessons.
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Honoring Human Rights From Peace to Justice
Second, human rights missions have learned a great deal about institution building. As the fighting that gave rise to UN interventions ended, states, international donors, and the UN turned to assisting with the reconstruction of basic state institutions. Field operations were called upon to provide technical assistance to police, judiciary, prison, and other institutional reform programs in addition to the monitoring and reporting functions that predominated in the Aspen I case studies.
Third, the UN Secretary-General launched a major reorganization of the Secretariat in January 1997 designed, in part, to incorporate human rights concerns into all of the UN's work. The Secretariat's programs are now coordinated through four executive committees (peace and security, economic and social affairs, development cooperation, and humanitarian affairs), with the High Commissioner for Human Rights (HCHR) serving on each committee. The Secretary-General also incorporated the Centre for Human Rights (CHR) into the Office of the High Commissioner for Human Rights (OHCHR) to institutionally consolidate the UN's human rights work. These structural changes have placed the HCHR in a position to address many of the human rights mission organization and management problems discussed in Aspen I.
Finally, Aspen I was prepared at a time of uncertainty in the UN's peacekeeping role. The early-1990s enthusiasm for large UN-led peacekeeping efforts has waned in the face of setbacks in Somalia, Bosnia and Herzegovina and, more recently, Cambodia. The UN Security Council has stepped back from new peace operations, even where serious human rights violations are occurring, delegating peacekeeping efforts to regional organizations, with the UN increasingly relegated to a supporting role. Accordingly, the effective organization of field missions, whether independent of or attached to the UN or to regional peacekeeping operations, has become even more urgent.
This introduction highlights several of the lessons that emerged from the country studies. It begins with a brief description of each mission before turning to institution-building experiences in police, prison, and judicial reform; human rights education; the strengthening of national human rights institutions and NGOs; and national efforts to address past human rights violations. It then ties together the monitoring and reporting focus of Aspen I and the institution-building focus of this report to emphasize the mutually reinforcing character of the two functions. Finally, a number of the Aspen I concerns about field mission organization and funding are revisited.
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Human Rights and Post-Conflict Institution Building: Introduction and Overview
THE MISSIONS
El Salvador
The United Nations Observer Mission in El Salvador (ONUSAL) was established in July 1991 to verify the human rights provisions of the San Jose Agreement, the accord that paved the way to end the civil war between the Salvadoran government and the Farabundo Marti National Liberation Front (FMLN). ONUSAL's first three years, the period covered in the Aspen I study, were principally dedicated to verification and reporting; institution-building work did not begin until the last year of its mandate (April 1994 to April 1995). ONUSAL was followed by three successively smaller missions: the Mission of the United Nations in El Salvador (MINUSAL), from May 1995 to April 1996; the United Nations Office of Verification in El Salvador (ONUV), from May to December 1996; and the Support Unit, from January 1997 through June 1998. The El Salvador paper focuses on the work of ONUSAL in its last year and the succeeding missions.
Cambodia
The Cambodia mission grew out of negotiations to end the years of conflict from the Khmer Rouge genocide to the Vietnamese intervention. Agreements signed in Paris in 1991 set up the United Nations Transitional Authority in Cambodia (UNTAC), a twenty-thousand-person operation with extraordinary powers to reestablish political stability and organize democratic elections. When UNTAC's mission ended in 1993, its human rights component was succeeded by a UN Centre for Human Rights field office and a Special Representative for Human Rights appointed by the Secretary-General. The office has monitored the human rights situation, provided education and training, and assisted Cambodian human rights NGOs. The Cambodia paper focuses on these post-1993 activities of the office.
Haiti
The 1991 military coup against Haiti's first democratically elected president, Jean-Bertrand Aristide, was followed by killings, arbitrary arrests, torture, and other human rights violations against his supporters. The UN and Organization of American States (OAS) efforts to restore democracy led to a joint UN/OAS mission in 1993 to monitor human rights while negotiations to reverse the coup continued. The International Civilian Mission in Haiti (MICIVIH) was evacuated to the Dominican Republic in October 1993. A small con-
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Honoring Human Rights From Peace to Justice
tingent returned in January 1994 but was expelled by the military in July 1994. The mission was reestablished in full force after US troops landed in Haiti in September 1994. MICIVIH returned with an expanded mandate, adding institution building, election observation, and capacity building for NGOs to its monitoring and reporting functions. The Haiti paper discusses MICIVIH's operations after the US military intervention and the return to constitutional government.
Guatemala
The United Nations Human Rights Verification Mission in Guatemala (MINUGUA) began operations in November 1994 under the terms of a Comprehensive Agreement on Human Rights, one of a series of UN-mediated accords that led to the end of Central America's longest armed conflict. The mission operated under a mandate to verify government and opposition compliance with human rights standards and to strengthen national human rights institutions. The Guatemala paper covers the activities of this mission from its deployment to the signing of a final peace agreement in December 1996.
Bosnia and Herzegovina
The 1995 Dayton Accords, designed to bring an end to the violence in Bosnia and Herzegovina, contained an extensive set of commitments by the parties to comply with regional and international human rights instruments. Responsibility for human rights monitoring, training, institution building, and education was dispersed across a wide array of UN and European organizations. The UN was represented by a civilian mission, the UN Mission in Bosnia and Herzegovina (UNMIBH); an International Police Task Force (IPTF); a UNHCR operation responsible for the return of refugees and the internally displaced; and a small CHR office to service the Special Rapporteur of the UN Commission on Human Rights. The Organization for Security and Cooperation in Europe (OSCE) has the largest human rights monitoring presence (thirty-five observers) and a democratization/civil society education program. The Council of Europe, the European Union, and numerous international NGOs also carry out human rights programs. A Human Rights Coordination Center was established by the High Representative of the parties to the Dayton Accords in an effort to organize these disparate activities. The Bosnia and Herzegovina paper describes the development of the human rights initiatives of this large group of actors.
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Human Rights and Post-Conflict Institution Building: Introduction and Overview Rwanda
The genocide launched against the Tutsi by the Hutu-dominated government in Rwanda in April 1994 prompted the newly established HCHR to ask the UN Commission on Human Rights to mandate a Special Rapporteur and to send a team of human rights field officers to Rwanda to monitor the human rights situation and offer technical assistance to the postgenocide, Tutsi-led government. This mission was the first field operation organized and managed by the CHR (now OHCHR) in Geneva. The Rwanda paper outlines the development of the mission since its conception and deployment in 1994.
Other missions
Finally, the paper titled "Smaller Missions Bigger Problems" provides a critical overview of a number of other missions organized from the UN Secretariat in New York and the OHCHR in Geneva. It discusses five New York-directed missions: Abkhazia (a joint OHCHR-Department of Peacekeeping Operations [DPKO] operation); Angola; Liberia; and Mozambique. The paper also discusses the offices run by the OHCHR in Burundi, Colombia, and the Democratic Republic of the Congo. These smaller offices monitor and report on human rights conditions, provide technical assistance to the government, and undertake human rights education initiatives. Since these operations are relatively new, little information is available on their institution-building work. The paper discusses organizational issues and the place of these operations within the UN system.
INSTITUTION BUILDING
UN human rights missions were often asked to provide assistance to postconflict governments in the reconstruction of national police forces and judicial and prison systems. In many of these states, police forces had been agents of persecution, prisons had been holding tanks for political prisoners, and judicial systems had been largely dysfunctional, when not simply corrupt and partisan. Missions were asked to provide technical assistance to and human rights training for each of these institutions and to monitor their human rights record as reform efforts unfolded. While each required a different set of skills and approaches, they shared three critical challenges: to coordinate the work of a large number of actors, design sustainable programs from the outset, and plan for the long term.
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Honoring Human Rights From Peace to Justice
Unlike most human rights monitoring situations, institution building involves a host of other UN actors, international donors, and financial institutions. In Guatemala, for instance, Spain provided the bulk of technical assistance for the police; in Haiti, Canada, USAID, and the European Union have financed various aspects of judicial reform; in Cambodia, a United States NGO, funded by USAID, provided a large judicial training program, and a Belgian NGO played a similar role in Rwanda. The UN Civilian Police (CIVPOL) has played varying roles in police reform efforts in El Salvador, Haiti, Cambodia, Rwanda, Mozambique, and Bosnia and Herzegovina.
The presence of multiple actors has posed serious coordination problems, often exacerbated by governmental and organizational rivalry or overlapping institutional mandates. The classic example is Bosnia and Herzegovina, where OHCHR, the European Union, the Council of Europe, OSCE, IPTF, and many international and local NGOs are active in human rights monitoring and institution building. The result is widespread duplication of work, with incidents often reported (sometimes in contradictory ways) and similar interventions carried out by more than one agency. The High Representative has attempted to coordinate the operations of these groups through a Human Rights Coordination Center, with mixed results.
Even where agencies attempt to coordinate from the outset of a mission, differing organizational mandates and cultures can result in disagreements over strategy, project control, and the role of human rights training and monitoring. In Guatemala, MINUGUA and UNDP took the highly positive step of forming a coordinating body for developing strategies and projects for human rights institutions early in the mission, but subsequent disagreements reduced the effectiveness of its work. In Rwanda, HRFOR developed a competitive relationship with UNDP at the outset of the mission when HRFOR attempted to position itself as the lead agency for coordinating donor funding for judicial reform. The two UN agencies were able to overcome the early problems and developed a cooperative relationship later in the mission, but valuable time was lost. The Cambodia office, on the other hand, generally worked well with other UN entities, particularly UNDP on a UNDP-funded project providing vital support to several of the office's most important programs. These experiences reinforce the need to fully integrate human rights concerns across the UN system in order to facilitate broader cooperation among UN agencies in the field and human rights missions.
The sustainability of institution-building efforts after the departure of a UN human rights mission has been a concern everywhere.
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Human Rights and Post-Conflict Institution Building: Introduction and Overview
Here the UN permanent agencies and the international financial institutions can play an important role. They have the expertise, management, and administrative capacity to carry on institution-building projects long after UN missions have ended. Some missions have worked successfully with other UN agencies to assure the continuity of programs after the mandate ends. UNDP, for example, is establishing a trust fund to finance fifty technical advisers to work for three years with the Haitian National Police following the end of the current CIVPOL mission in Haiti, and the Inter-American Development Bank is investing in judicial reform in El Salvador. But these projects have tended to emerge in a somewhat ad hoc manner, not as the result of mission strategies that these potential long-term donors helped to develop.
Finally, experience cautions against ambitious expectations for rapid institutional change, expectations which are inevitably very high at the outset of a UN operation. The most important expectation-dampening lesson is that much of the success of UN institution building depends upon the commitment of national governments to reform programs. And in many host states, that commitment has been weak. Several projects in Haitimost prominently, judicial reformhave made little progress, principally as the result of lack of government support. Other missionsthe human rights office in Cambodia, for examplehave faced government officials openly hostile to human rights work.
Even where host governments support institution-building projects, they often have limited capacity to absorb aid in any form, whether financing, training, or equipment. Moreover, such governments usually have no plan or strategy to tackle institutional problems; this was especially evident in Guatemala, Haiti, Cambodia, and Mozambique. The lack of strategy, governance, or "absorptive capacity" limits the sustainability of all international assistance, including efforts to build capacity in the national police and the judiciary. Without effective national administration, tax collection, and accounting and auditing of state funds, corruption flourishes, salaries are not paid, and even the best-designed institution-building programs will not survive the inevitable departure of the human rights mission. Institution building is a long, laborious process, and missions should develop strategies that plan for the long term from the outset.
The National Police
Human rights field missions have contributed to police reform programs in several states. Human rights education and training for both new recruits and veteran officers has been the principal focus.
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Honoring Human Rights From Peace to Justice
Missions have organized training modules for police academies (Haiti) and training classes for local police units throughout the country (Cambodia, Rwanda, and Bosnia and Herzegovina). Field staff have monitored police behavior and investigated reports of human rights abuses by the police.
UN Civilian Police units, fielded by the UN Department of Peacekeeping Operations, have been the principal UN actors involved in the reform of national police forces. Organization, recruitment, and training deficiencies, however, have often hampered the human rights aspects of CIVPOL missions. DPKO has had difficulty rapidly recruiting competent police officers from UN member states. The recruits have sometimes lacked basic police skills (for example, some did not know how to drive); others have limited investigative experience; many have never trained or mentored other police officers; and some officers have not been able to speak the official working language of the mission. Many have had no human rights training and are unaware of the international standards for police behavior promulgated by the UN. Some CIVPOL officers come from states that do not respect human rights and bring a police culture and methods inimical to human rights. CIVPOL units in Rwanda, Mozambique, Bosnia and Herzegovina, Haiti, and Colombia have suffered from these problems.
Human rights missions and CIVPOL units faced the challenge of integrating human rights principles into police training. Field mission experience suggests that peer training (that is, CIVPOL officers training other police) is the most effective method, but that nonpo-lice human rights field officers can offer important insights. Joint training by human rights officers and CIVPOL, or integrating CIVPOL into a human rights operation (as in El Salvador and Guatemala), constructively incorporated human rights practices into CIVPOL's broader training program. The most useful teaching methods stressed practical, not theoretical or academic issues; case studies, small group projects, and role-playing exercises were more successful than lectures. The teaching method in Cambodia, for example, relied on overly legalistic and abstract lectures and was not successful in conveying basic human rights policing principles. In Haiti, in contrast, classes used case studies of actual police behavior monitored and investigated by MICIVIH. Finally, CIVPOL units accompanying national police in the field for on-the-job training were more effective in enhancing the capacity of national police than units remaining in the classroom.
Mission experience also underscored the need for CIVPOL to work closely with local nongovernmental organizations and to
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Human Rights and Post-Conflict Institution Building: Introduction and Overview
encourage the national police to do the same. The neutral setting provided by a human rights mission or CIVPOL unit can facilitate the communication necessary to overcome decades, sometimes centuries, of distrust between the public security forces and the population they are charged to protect and serve. A promising method to forge this kind of relationship is "community policing," training officers to develop relationships with the residents of the neighborhoods they patrol. However, not all human rights or CPVPOL officers are themselves trained in community policing techniques. In Haiti, for example, the commitment to community policing principles within the CIVPOL leadership varied. CIVPOL thus sent mixed messages about the value of this practice to the new Haitian police.
The sustainability of human rights police training was a concern in most missions since governments generally did not have the capacity to duplicate CIVPOL's work and few, if any, national police institutions had prior models of appropriate police behavior to draw upon. Missions in Haiti, Cambodia, and Guatemala have attempted to address this problem by teaching groups of national police officers to be human rights trainers, thus institutionalizing training within the police itself. Utilizing this "train the trainers" approach, the Cambodia office was able to support the instruction of more than six thousand military and police officers on basic human rights, the rule of law, and the role of the security forces in a democracy.
Judiciary and Prisons
Judicial reform has proven to be one of the most difficult institution-building areas in which to measure rapid progress. Judicial systems were destroyed in civil conflict (Cambodia and Rwanda), dominated by jurists unwilling to modernize (El Salvador and Guatemala), or left to drift by governments unable or unwilling to commit to reform (Bosnia and Herzegovina and Haiti). Within this context, missions have operated in several capacities. In Haiti, MICrVTH produced its own diagnosis of judiciary problems and needs, suggested reform strategies to the government, drafted laws, held seminars and conferences on legal reform, and provided training to judges and court personnel. Missions in Rwanda, El Salvador, and Cambodia engaged in similar efforts to advise justice ministries and to work with donors to train judges, prosecutors, and other court personnel. The Cambodia office has been particularly active in assisting the government to draft new laws affecting civil and political rights. In Guatemala, MINUGUA used a trust fund financed by state donors to help reorganize the Guatemala City Public Prosecutor's Office and strengthen the Public Defender Service.
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Honoring Human Rights From Peace to Justice
Human rights missions appeared to have three particular strengths in judicial and legal reform. First, missions were in a unique position to diagnose problems in the justice system and provide feedback on reform efforts on the basis of reports from field staff. Second, missions could offer governments a wide range of judiciary specialists where no national expertise existed. However, missions sometimes failed to provide the kind of specialists needed at different phases of the reform process because of the UN's rigid and time-consuming hiring procedures. In Haiti, MICIVIH tried to address this need by hiring short-term consultants, but this is not a satisfactory solution. Missions should have more flexibility to hire short-term staff than current UN regulations permit.
The UN's third strength is its capacity to coordinate the contributions of the several international donors involved in legal reform. The European Union, Canada, France, the United States, UNDP, the World Bank, the Inter-American Development Bank, and a number of international NGOs are involved in judicial reform projects in many states with human rights field missions. Unfortunately, governments have not proved very effective at coordinating projects, resulting in program duplication and poor sequencing. The lack of coordination may stem from a donor tendency to view individual efforts in relatively narrow termsas targeted technical assistance rather than as part of an integrated project. In Haiti, for instance, both USAID and the European Union have supported different public defender programs, and the European Union is financing a commission that is supposed to produce a new reform package, three years after a US-designed program was launched.
Identifying and sequencing donor projects has become particularly important in light of the critical relationship between judiciary and police reform, identified most problematically in Haiti. Solid, if slow, improvements in the performance of the Haitian National Police have been frustrated by a judicial system that still remains largely dysfunctional. Human rights gains with the police face setbacks when the courts cannot or will not try dangerous criminals or police officers accused of crimes or human rights violations. And since judicial reform is a particularly long-term endeavor, continuity and sustainability are critical concerns that should be addressed at the earliest stages of reform planning. Judicial reform is one area where UNDP and the international financial institutions could play an important role, and they should be included in the process at an early stage.
Prison reform has been neglected by most governments, international donors, and NGOs. Missions in Rwanda, Haiti, Guatemala, and Cambodia responded by pushing governments and donors to
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Human Rights and Post-Conflict Institution Building: Introduction and Overview
improve prison conditions. The mission in El Salvador focused on prison monitoring and intervention in circumstances of severe overcrowding and ill-treatment. International donors, however, have not seemed particularly interested in supporting prison reform in spite of mission efforts.
National Institutions and NGOs
Each mission experience underscored the need for a much stronger UN effort to strengthen the capacity of national human rights institutions and NGOs. In particular, missions should provide training and resources to help NGOs carry out human rights education and promotion. When the UN mission departs, these organizations will have to continue the long-term process of developing a rights-respecting society.
Some missions worked to support the development and institutionalization of national human rights organizations (such as a human rights commission, ombudsman, or legislative committee). Unfortunately, these new national institutions have not yet proven effective at promoting and defending human rights, and UN support has not made a substantial difference in this outcome. In El Salvador, for example, the government created the National Counsel for the Defense of Human Rights (a national ombudsman who won the confidence of many Salvadorans) but failed to provide institutional support or adequate funding. Although UNDP has provided some assistance, the office remains fragile, and its effectiveness appears to depend upon the leadership of the individual serving as National Counsel. Similar problems have rendered the National Assembly Commission on Human Rights and Reception of Complaints in Cambodia and the Protector of the Citizen in Haiti ineffective.
Mission efforts with NGOs, on the other hand, have been more positive, although not without significant tensions. In Guatemala, for instance, MINUGUA found NGOs crucial for educating the mission about the human rights situation in the country. They were also helpful in educating the general population about human rights, the peace process, and the role of the mission. And they encouraged Guatemalans to come forward and trust MINUGUA with human rights complaints. The relationship was mutually beneficial, although not without difficultiesNGOs often criticized the mission for not taking a more confrontational position with the government on human rights issues.
Cambodia is widely viewed as the most successful of the UN efforts to strengthen NGOs. Support for the establishment of local NGOs was an explicit part of the human rights component of the
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Secretary-General's Report to the Security Council on UNTAC's mandate. The mission offered financial, technical, and administrative assistance to all groups on an equal basis, as well as training courses, materials, and support for group members to attend regional and international human rights meetings and conferences. In addition, a trust fund-financed international and regional task force provided backup expertise and advice to new Cambodian groups. The drawback to this mission support is that it leaves NGOs vulnerable when the international community can no longer sustain the funding.
Mission difficulties with NGOs came from several sources. In some cases, the leadership did not give priority to the strengthening of NGOs. Some missions did not have any staff with relevant experience and therefore had difficulties understanding NGO culture. NGOs were, at times, suspicious of a mission's commitment to human rights reporting when the mission was also engaged in institution-building activities. In El Salvador, for instance, ONUSAL distrusted the perceived political alignment of many local NGOs and was surprised at their poor technical capacity; consequently, it did not develop relationships with NGOs until late in the mission. This failure to take NGOs seriously, combined with the resentment of that community, created an adversarial relationship that resulted in lost opportunities for human rights protection.
Although training has been the major focus for NGO support, UN missions should also include NGOs in the development and implementation of institution-building programs. In Bosnia and Herzegovina, for example, many institution-building programs are managed by international groups with little local participation. As a result, local groups lose an opportunity to develop needed experience; more problematically, these programs will likely collapse when the international groups leave. The International Institute for Democracy and Electoral Assistance is making an effort to encourage the transfer to local groups of institution-building projects initiated by international organizations.
The UN can also advocate for national laws establishing a legal basis for NGOs and preventing government interference with their work. The Cambodia office cooperated with the Ministry of the Interior and NGOs to prepare a draft law protecting the rights of NGOs while providing for their accountability. This step enhanced the local NGO community's ability to carry out activities essential to human rights protection and promotion.
On balance, however, it is not clear how long the benefits of mission support will endure. This concern over sustainability has to do, in part, with the lack of organizational development of NGO com-
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Human Rights and Post-Conflict Institution Building: Introduction and Overview
munities in many places. In Haiti, for instance, MICIVIH has provided hundreds of training seminars and workshops for NGOs; although the level of human rights knowledge and activity has grown, NGOs remain institutionally fragile. This suggests a need to develop strategies in future missions (such as HRFOR's program in Rwanda for NGOs to second staff members to the mission) for organization and management, as well as field training. The basic lesson here, however, mirrors that of other institution-building areas: Rebuilding civil societies after long-term conflict will take time and money; NGOs will need support long beyond the life of a mission. And this leads to perhaps the most crucial problem, one that the UN missions have not been able to solve: the need to create sources of long-term funding for NGO activities. This particular issue requires further discussion within the national and international NGO communities and among donor states.
Human Rights Education
Human rights education has been at the core of every mission's work, cutting across all monitoring and institution-building activities. Education activities tend to fall into three broad categories: human rights information for the general population; training programs targeted at particular professional groups; and promotion of the rights of particularly vulnerable populations, such as women and children.
Missions found it helpful to conduct a national education and promotion campaign to explain the role of a human rights field operation, to encourage participation in the mission's work, and to disseminate human rights standards as broadly as possible. Success depended on marrying a strategy to country conditions and obtaining the appropriate personnel resources for media and training. In Guatemala, MINUGUA took advantage of its nationwide deployment to pursue a decentralized education strategy tailored to the country's ethnic and social diversity, with field staff giving hundreds of talks and human rights training courses before shifting to training NGO personnel to carry out their own educational programs. In Haiti and Rwanda, the missions developed innovative ways of taking human rights instruction to largely illiterate rural populations, using popular entertainment such as radio plays and traveling theater troupes.
In addition to explaining the role of the mission, a broad education campaign should explain the human rights norms expected to govern the behavior of the police and the judiciary. In a number of mission states, the removal of authoritarian governments after peace
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Honoring Human Rights From Peace to Justice
settlements has contributed to rising crime and violence. In Guatemala, MINUGUA found itself heavily criticized by the general population for its concerns about due process violations by the police in response to increasing crime and the rise of vigilante groups, and its opposition to the death penalty. An education campaign explaining why human rights protections are important in these cases might help a mission to mute this kind of backlash and encourage support for rights-respecting police, judiciary, and prison systems.
Unfortunately, few missions developed a strategic analysis of general and specific education needs prior to taking the field; as a result, some found themselves without the staff and resources needed to launch significant education programs once deployed. In El Salvador, ONUSAL's initial attempt to begin a nationwide education campaign failed for lack of trained staff, resources, and a coherent strategy. In Haiti, MICIVIH developed a plan for a nationwide education campaign but was slow to implement it (during MICIVIH's second phase) due to a lack of appropriate in-house expertise and a debate within the mission about whether to leave education to NGOs. Later cutbacks in the mission's funds, combined with the almost total NGO dependence on MICIVIH for the financing of education projects, led the mission to shift its educational focus to state agencies and local officials.
Targeted training programs involving the military, police, prison officials, journalists, and the judiciary, whether designed and implemented by the mission, other UN organs, or consultants, absorbed much of the missions' institution-building efforts. Unfortunately, even well-designed programs were sometimes poorly implemented. In Cambodia, poor translations of international human rights documents and national legal codes and education materials hindered understanding. Education and training sessions were designed by outsiders without taking into consideration local cultural norms and expectations, levels of human rights knowledge, and local education techniques. Training leaders often did not speak the local language and translators were of poor quality. Lecture formats for the dissemination of abstract human rights concepts were unhelpful. Effective training programs avoided formal and legalistic approaches, focusing instead on the practical integration of human rights ideas and practices into a group's daily work, using examples from local situations, and involving participants in interactive exercises.
Finally, education and training follow-up was a consistent problem across missions. The long-term sustainability of mission education and training efforts was rarely assured. One option for addressing the problem of follow-up is for a mission to train local NGOs to
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Human Rights and Post-Conflict Institution Building: Introduction and Overview
serve as human rights educators. Another approach is to encourage national governments to include human rights in the national education curriculum, and then provide human rights training and resource materials to primary and secondary school teachers. A third possibility for long-term education rests with other UN agencies (particularly UNESCO and UNICEF) integrating human rights into their education work in specialized areas.
Addressing the Crimes of the Past
The legacy of past human rights abuses has shaped the current human rights and political climate in all mission states. Cambodia and Rwanda are attempting to deal with genocides, and "ethnic cleansing" campaigns have reconfigured the map of Bosnia and Herzegovina. In Rwanda, the issue of how to fairly process the enormous number of prisoners accused of involvement in the genocide has been a major concern of the UN mission. In Bosnia and Herzegovina, dealing with refugees and persons displaced by the war has been central to the mission's mandate. Elsewhere, the legacy of the past plays out in other waysthe new Haitian National Police, for instance, has faced difficulties gaining the public's trust after so many years of fear.
Strategies to address past human rights crimes have ranged from national trials (Burundi, Rwanda, Bosnia and Herzegovina) or international tribunals (Bosnia and Herzegovina, Rwanda) to national commissions of inquiry, or "truth commissions" (El Salvador, Haiti, Guatemala). The effectiveness of truth commissions has depended upon the interest of the government in a full investigation and a commitment to publicize and distribute the commission's final report and implement its recommendations. Sometimes, however, the very process of collecting testimony and establishing the truth has served to acknowledge the suffering of victims and thereby contributed to the process of national reconciliation. In El Salvador, for example, the government has demonstrated no interest in using the truth commission's report for educational purposes, which has reduced its impact in the country. But the report was important for validating the claims of human rights organizations about facts that had been officially denied for years.
The scope of efforts to address the pastand any role for a human rights mission in that process is sometimes determined by peace negotiations in which the UN and the international community participate. Cambodia provides an example of how these negotiations can restrict efforts to deal with past abuses. The Paris Accords establishing a framework for peace in Cambodia did not adequately
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address the human rights violations committed by the Khmer Rouge (who were parties to the accords). UNTAC's mandate said nothing about addressing the genocide. It was not until 1997, when it appeared that Pol Pot had been arrested by Khmer troops, that the international community took steps to address the genocide. The suggestion from the Secretary-General's Special Representative for Human Rights in Cambodia that a group of experts consider the question of past abuses was accepted by the General Assembly. The group will assess the evidence and propose further measures.
While states must determine their own approach to the past, the UN can play a number of supporting roles. A mission can present options for dealing with the past utilized by other states as a way to assist a government to craft its own policy. It can provide direct technical assistance to a tribunal or a commission, or monitor the fairness of efforts to address the past if neither its mandate nor the government authorizes a broader role. Although its mandate was silent on the issue, MICIVIH in Haiti provided support to the truth commission and other judicial efforts to investigate and bring to trial individuals charged with past abuses. It also sought to prod a reluctant government to pursue the commission's unimplemented recommendations by publishing a booklet titled Human Rights and the Rehabilitation of Victims. In Guatemala, MINUGUA's mandate only authorized the mission to investigate violations committed after the mission began its work. But the mission was able to make a contribution by monitoring the fairness of court procedures in local trials dealing with past abuses.
Postconflict decisions about how to pursue justice and reconciliation can be deeply affected by amnesties for past human rights abuses negotiated during the peace process. UN negotiators have often played important roles in peace negotiations, and the lack of a general UN policy on accountability for past human rights crimes has allowed some UN personnel to take troubling positions on this issue. In Liberia, for example, the UN Observer Mission published a booklet encouraging a "let by-gones be by-gones" policy, which contradicted the desires of local rights and church groups for some kind of truth-seeking or judicial process. In negotiations to end the crisis in Haiti, a UN representative was directly involved in drafting an amnesty law, publicly welcomed by a second UN official, which many human rights NGOs argued illegally pardoned crimes against humanity. (UN human rights officers in Haiti also had serious doubts about the amnesty.) These examples suggest that without appropriate policies, UN mediators may sign on to peace accords with weak language on amnesties for past crimes. In order to avoid this outcome,
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Human Rights and Post-Conflict Institution Building: Introduction and Overview
the UN should develop clear amnesty guidelines for its mediators, negotiators, and field personnel. The guidelines should identify crimes that under generally accepted international law cannot be subject to an amnesty. The UN should then instruct its negotiators and field staff not to participate in the drafting of or condone any amnesty that includes such crimes.
THE RELATIONSHIP BETWEEN MONITORING AND INSTITUTION BUILDING
Perhaps the most important operational lesson from the field mission experiences is the essential complementarity between human rights monitoring and institution building. Monitoring gave missions the ability to identify the sources and scope of human rights problems throughout the country. This information could then be used to design reform measures and training programs. Finally, field monitoring provided direct feedback on the effectiveness of reform strategies or programs as they were implemented. In Haiti, for example, MICIVIH monitors visiting prisons noted that no records existed identifying the inmates, the crimes for which they had been imprisoned, or the length of time served. After prison registers were introduced pursuant to a MICIVIH recommendation, monitors made prison visits to ensure that the registers were used. They were also able to obtain information from the registers about whether police and judges followed proper arrest and detention procedures, and to feed that data back to reform and training programs.
Just as important, the combination of functions gave missions the chance to establish credibility with both governments and human rights organizations. Governments uncomfortable with human rights monitoring and reporting were often eager for the institutional assistance needed to correct the violations. This monitoring-institution building balance seemed important in states such as Rwanda, where human rights-protecting institutions had been destroyed or had never existed. It also facilitated greater cooperation and trust among mission staff and government personnel: Police officers who participated in mission training programs in Haiti and Rwanda often seemed more comfortable with mission staff they encountered in the field after the training. The Guatemala mission stressed the important mutually reinforcing nature of the two functions; consequently, mission field staff were able to go beyond monitoring, offering suggestions to government officials on ways to improve their work during visits to offices of the Public Ministry and the courts. Wary officials
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also came to appreciate the value of mission reports highlighting improvements in the government's human rights record.
Attempting to integrate the two functions, though, was not without its challenges. Missions had to overcome the inevitable tensions between criticizing and assisting governments, and the concern that one function might give way in importance to the other. In El Salvador and Guatemala, human rights NGOs criticized the missions for allegedly muting human rights reporting in order to maintain good relations with the government for institution-building purposes. Some missions experienced difficulties between the two functions because of the CHR's preference for technical assistance activities or as a result of vague mandates. In Cambodia, the CHR (which set up the Cambodia human rights mission after UNTAC departed) initially viewed the office as a provider of technical advice to the government and took a cautious attitude toward monitoring. That situation changed in 1996, when the UN Commission on Human Rights specifically authorized a monitoring function for the office. In El Salvador, ONUSAL's initial mandate only covered monitoring; it was not expanded to include significant institution-building activities until late in the mission, and by then UNDP was coordinating most of the technical assistance work.
Nevertheless, the country studies concluded that combining monitoring and capacity-building was essential and that missions suffered when one function was emphasized to the detriment of the other. Future missions, whether components of large peacekeeping operations or free-standing OHCHR offices, should encompass both. The challenge is to develop the interplay between the two functions, taking account of the inevitable tensions, to achieve maximum results.
UNITED NATIONS HUMAN RIGHTS ORGANIZATIONAL ISSUES
The Aspen I report was critical of the way in which the UN organizes, manages, and finances human rights field operations. Discussing the El Salvador, Cambodia, and Haiti missions organized by the UN Secretariat in New York in virtual isolation from the CHR in Geneva, the report noted that
every human rights mission mounted by the United Nations has been hampered by the need to reinvent the bureaucratic wheel. There has been virtually no continuity in the form of
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Human Rights and Post-Conflict Institution Building: Introduction and Overview
briefing materials, administrative oversight, or institutional memory. The absence of a permanent professional office within the United Nations to establish and guide these missions has exacerbated problems for field staff. ... The Centre for Human Rights in Geneva has not had a staff with adequate field experience, and its relationship to the New York Headquarters has been anything but close. The coordination with other bodies in the UN family has never worked satisfactorily either.
The report recommended with some urgency that the UN develop an "institutional capability" to plan, organize, equip, and coordinate field operations and to recruit and train qualified field staff. It suggested the establishment of a roster of qualified candidates for field missions, prescreened individuals who could be called upon for rapid mobilization during a crisis. Unfortunately, the UN made little, if any, progress in this direction during the period covered by the studies in this volume.
The Guatemala mission, following the launching of operations in El Salvador, Cambodia, and Haiti, was organized and managed by the UN Secretariat's Departments of Peacekeeping Operations (DPKO) and Political Affairs (DPA) in New York. It sought to build on the experiences of the prior three field operations, utilizing an advance planning trip to facilitate a speedy deployment, producing field reference manuals at the mission outset, and attempting to integrate the monitoring and institution-building functions of its mandate. It also established predeployment training for staff and was able to recruit former MICIVIH (Haiti) and ONUSAL (El Salvador) workers.
But this passing on of experience came piecemeal, from conversations with other mission veterans and studies such as Aspen I. Neither the New York departments nor the CHR in Geneva had evaluated the prior missions to develop field guidelines for new operations. Filling ongoing staff was also difficultpersonnel decisions were made in New York and, in the absence of a candidate roster, the selection process was slow and sometimes produced individuals who did not meet mission needs. And while DPA provided advice on political matters, the CHR was unresponsive on human rights questions. Once under way, MINUGUA was unable to share experiences with concurrent missions in Rwanda or Haiti.
Indeed, organizational matters became more complicated as the CHR/OHCHR itself assumed management of missions, first with a post-UNTAC office in Cambodia and later with a large field operation in Rwanda. Tensions between the CHR and its Cambodia office were
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generated by disagreements over the roles of monitoring and protection in the mandate and the CHR's efforts to micromanage administrative, policy, and financial matters from Geneva. Administrative problems led to extended delays in filling key staff vacancies, including the position of the Cambodia office director (vacant for two of the mission's four years of operation); prolonged delays on nominations for consultants and volunteers, resulting in delays in implementing programs and the loss of many potential candidates; failure to replenish office funds in a timely manner; and long delays on program-funding decisions, leaving the Cambodia office unable to respond to emergencies or serve as a reliable source of NGO support.
The mission in Rwanda was a huge undertaking for the Geneva office, and it struggled with problems familiar to the Cambodia operation. It was launched without input from the prior New York-sponsored operations in El Salvador, Cambodia, Haiti, and Guatemala, or the benefits of the advance planning missions that had worked well in Haiti and Guatemala. It was slow to get a mission on the ground despite an urgent need for a postgenocide international presence in the country; yet the hurried organizational effort produced many underqualified individuals who were sent to the field with little training, equipment, or administrative support. The mission also shared the Cambodia office's frustration with Geneva's efforts to directly manage field activities and with rigid UN disbursement requirements.
The UN has recently taken some positive steps toward greater coordination of field missions. In Angola and Abkhazia, the Secretariat is developing a new arrangement whereby human rights personnel employed as part of the mission organized by DPKO in New York will be working with the HCHR in Geneva. The HCHR will recruit and train human rights officers who report through the Head of Mission to the HCHR; the High Commissioner will provide human rights technical assistance and advisory services to the government through the mission.
Nevertheless, the studies in this volume reinforce the importance of the organizational recommendations of Aspen I directed to the UN and its member states. They fall into three broad areas. First, the OHCHR should develop the capability to plan, implement, and evaluate human rights field operations, devoting specific personnel and resources to this task. This means recruiting staff with field experience, developing a standing roster of candidates for missions, integrating monitoring and institution-building functions within the office, and establishing logistical arrangements for field deployment with other UN agencies such as DPKO and UNHCR. Second, the
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Human Rights and Post-Conflict Institution Building: Introduction and Overview
HCHR should encourage the integration of human rights protection and promotion throughout the UN system, particularly into the work of the field agencies (among them, UNDP, UNHCR, UNICEF, UNESCO, and WHO).
Third, the UN must develop reliable funding mechanisms for field operations and longer-term institution-building programs. The most fragile missions have been those funded from voluntary contributions, such as the Rwanda operation and the offices in Burundi and Bosnia and Herzegovina. Pledged funds are slow to materialize, making planning difficult and often curtailing optimal mission size. In Rwanda, financing became so tight that UN contracts were sometimes issued only on a month-to-month basis. However, even operations funded out of the UN General Assembly budgetMICIVIH in Haiti and MINUGUA in Guatemala, for exampleare hostage to the health of General Assembly finances. No satisfactory alternative to assessed contributions for human rights missions appears available. Voluntary contributions can only be effective when the pledged funds are made available prior to the deployment of a mission, a highly unlikely possibility given the history of actual funding practices.
CONCLUSIONS
The studies in this volume demonstrate that human rights missions have made positive contributions to peace and the protection of human rights in states recovering from serious conflicts. Each mission has been able to reduce the scale of human rights abuses that preceded its arrival, to provide much needed protective space for the emergence of national human rights NGOs, and to introduce the importance of human rights principles to populations and security and judicial institutions to whom human rights had meant little before. These are not small achievements in countries attempting to recover from decades of civil war, repressive military governments, or genocide.
Like its predecessor, however, this volume is critical of several aspects of UN human right field operations. The criticisms are directed to both the UN and the member states. The Secretariat simply must organize and manage future missions much better. This volume provides a clear set of recommendations on how it may do so. In addition, the Secretary-General should ensure that all UN operations in mission states cooperate closely to support short- and long-term human rights programs for both monitoring and institution building.
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It is also clear that UN Secretariat reforms are not enough. While the international community has come to recognize that massive human rights violations underlie most contemporary conflicts, and has thus included human rights in peacekeeping operations, human rights missions cannot be expected to succeed when UN member states do not provide the necessary political and financial backing. With the UN Secretary-General reorganizing the Secretariat to emphasize human rights, and an energetic new High Commissioner for Human Rights prioritizing field operations, the timing is appropriate for UN member states to generate the political will and financial support to make these changes work.
Thomas Hammarberg and Patrick Gavigan
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Honoring Human Rights From Peace to Justice Recommendations to the United Nations
from an Aspen Institute conference on United Nations Human Rights Field Operations and Institution Building
The Aspen Institute's Justice and Society Program organized a conference in 1994 to examine the then-new role of United Nations human rights missions in peacekeeping operations. In the two years since the publication of the conference papers and recommendations, Honoring Human Rights and Keeping the Peace: Lessons from El Salvador, Cambodia and Haiti, much has changed in the UN's peace-building role. Three developments, two quite recent, are of particular significance. First, the UN has had considerable additional experience with the missions in El Salvador, Cambodia and Haiti, as well as with newer missions in Guatemala, Rwanda and Bosnia and Herzegovina, and has begun to develop related experience with smaller offices in other countries, including Angola, Burundi, Colombia, and Liberia. Second, a new Secretary-General has initiated a reorganization of the Secretariat that is designed, in part, to emphasize the importance of human rights to all aspects of the UN's work. Finally, a new High Commissioner for Human Rights (HCHR) has been appointed and, following the restructuring of her office, formerly the Human Rights Centre, now the Office of the High Commissioner for Human Rights (OHCHR), is paying particular attention to field operations.
In September 1997, The Aspen Institute convened a second conference to review the role of human rights field missions in post-conflict institution building efforts. The conference participants sought to develop recommendations for the UN community based upon the institution building experiences of the three missions studied in the earlier report, as well as the several later human rights field operations.
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Background papers focusing on institution building were commissioned for (i) updates on the three countries examined in 1994; (ii) full descriptions of the human rights missions in Guatemala, Rwanda and Bosnia and Herzegovina; and (iii) an overview of the UN's smaller missions (Abkhazia, Angola, Burundi, Colombia, the Congo [former Zaire], Liberia, and Mozambique). The conference began with a general discussion of the complementarity between a mission's human rights monitoring and institution building roles. Thematic panels then examined areas of institution building that affected all of the missions, including police; prisons; judicial reform; national human rights institutions; the nongovernmental organizations; and "addressing the past." Finally, the participants discussed the organizational, policy and funding issues facing the new HCHR and the UN system.
The conference participants included individuals from the UN and its relevant organs, current and former human rights mission directors and other officers, representatives of UN member states, national military and police forces participating in missions, and representatives of non-governmental organizations (NGOs), from the countries in question.
Although the conference papers and recommendations will be published later in 1998, the participants prepared in advance of the publication, the set of recommendations for UN officials and member states now reviewing the way in which the UN organizes and implements its human rights mandates.
The following recommendations are the outcome of rich discussions at the conference and reflect the collective experience and judgment of the participants. Although some of the recommendations that follow were also made in the earlier Aspen Institute report, they are restated here because the experiences of the last few years have only served to emphasize their importance to the success of future human rights field operations. And that has been the purpose of both Aspen Institute conferences: not to establish whether particular missions succeeded or failed but to learn from them in order to better design UN policies for the future.
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Recommendations to the United Nations
RECOMMENDATIONS
A. The Organization of UN Human Rights Field Operations: The Secretariat
1. The Office of the High Commissioner for Human Rights Should be Organized to Reflect its Field Mission Responsibilities.
a. The OHCHR should devote specific personnel and resources for the planning, implementation and evaluation of human rights field operations; for ensuring their integration into the overall operations of the UN Secretariat and agencies; and to assure that the UN experience is available to regional organizations. The HCHR should take full advantage of the office's restructuring so that human rights field experience and competence is well represented among OHCHR officials and that monitoring and institution building concerns are integrated within the office itself.
b. The New York office of the HCHR should be significantly strengthened to secure effective representation of the human rights dimension in the planning of peace operations, as well as in the overall strategies of the UN Secretariat and New York based agencies.
c. OHCHR should develop a standing roster of candidates for human rights field posts to ensure the rapid recruitment of personnel with appropriate skills, training and field experience for new missions.
2. Human Rights Should Be Integrated Throughout the UN System.
a. The HCHR should make effective use of her membership on all four Executive Committees established by the Secretary-General, as well as organizing discussions of human rights issues at the highest level when necessary. In addition, the HCHR should seek enhanced coordination within the Secretariat and with UN agencies for the purpose of establishing full complementarity between their work and that of each human rights field operation.
b. Human rights training modules should be incorporated into the training programs of UN personnel, including
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Honoring Human Rights From Peace to Justice
military peace-keepers and field personnel of UN agencies, and made part of the curriculum of the UN Staff College. Special priority should be given to human rights training and guidance for UN civilian police (CIVPOL).
c. The HCHR should develop standing arrangements with the appropriate departments of the Secretariat (Department of Peacekeeping Operations [DPKO]-Field Administration Logistics Division [FALD]) and UN agencies (UN High Commissioner for Refugees [UNHCR]) for the prompt delivery of equipment, logistics and administrative services for rapid deployment of human rights missions and to assure the sustainability of any human rights operation once in the field.
d. OHCHR and DPKO should make certain that uniform codes of conduct reflecting human rights standards govern the behavior of all UN field personnel.
3. The UN Should Develop Reliable Funding Mechanisms for Human Rights Field Operations and Activities.
a. There should be a funding mechanism whereby major human rights field operations, whether incorporated within multi-dimensional peace-keeping operations or mounted on the initiative of the HCHR, can be financed from assessed contributions.
b. The HCHR should seek a voluntary fund of sufficient size and flexibility to establish promptly, and to sustain for an adequate initial period, human rights field activities not funded from assessed contributions.
c. The OHCHR should develop strategies and funding mechanisms for ensuring the sustainability of long-term institution building beyond the relatively brief presence of a human rights field operation. Such strategies should involve other UN and related agencies concerned with governance, economic, social, educational, health and cultural development programs (e.g., UNDP [UN Development Program], UNHCR, UNICEF, UNESCO, ILO, WHO, I.M.F. and the World Bank).
4. HCHR Should Encourage Working Relationships with Regional Organizations.
a. The OHCHR should develop training packages for, and offer other human rights support to, regional organiza-
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Recommendations to the United Nations
tions undertaking field operations, and enter into standby arrangements for possible joint efforts.
b. The OHCHR should ensure the presence of human rights monitoring and institution building programs within or alongside UN-authorized regional peace-keeping operations.
The Relationship Between Monitoring and Institution Building
1. Monitoring and Institution Building are Complementary Mandates and Both Should Be Included in the Work of Human Rights Missions.
a. There is an intimate and supportive relationship between the dual monitoring and institution building functions of human rights field missions. Human rights monitoring can identify problems with the armed forces, the police, the judicial system, the prisons and other areas of concern, while the technical cooperation for institution building helps to ensure that those concerns are addressed by the appropriate institutions. Monitoring, in turn, provides feedback on the effectiveness of the technical assistance projects in improving human rights.
Institution Building: The National Police
1. Police Reform Projects Should Include Human Rights Training and Education, Emphasize Police-Community Relations, and Focus on Long-Term Sustainability.
a. Human rights missions and CIVPOL should work closely together on police reform projects and should coordinate their activities with any bilateral agency in the same area. The human rights mission should contribute to the human rights training of both CIVPOL officers and the national police.
b. Broad national education campaigns explaining the role of and legal restraints on the new national police force, should be undertaken by the government, with assistance provided by CIVPOL, human rights field officers, UNESCO, UNICEF and other relevant agencies. This may help offset adverse views of the police resulting from any increase in crime following the removal of the military from policing responsibilities, along with new policing
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methods respectful of the human rights of criminal suspects.
c. Community policing principles should be included in all police training. As part of this approach, CIVPOL and human rights field officers should encourage regular meetings between the national police and the local population.
d. Police reform projects should focus on assisting national police forces to develop internal codes of conduct, disciplinary mechanisms and a national police inspector general's office responsible for investigating both human rights abuses by the police and their involvement in any criminal activity. These measures could help institutionalize human rights principles and enforcement mechanisms within the police force itself, contributing to the sustainability of the mission's work.
e. UN missions should endeavor to increase the capacity of local governmental and non-governmental institutions to monitor the performance of the national police.
UN CIVPOL Administration Should Be Strengthened and Recruitment and Training Enhanced.
a. The CIVPOL unit in DPKO should have additional resources and personnel so that competent police officers can be recruited and trained more rapidly and effectively than has been the case to date.
b. UN member states should be encouraged to develop rosters of officers with foreign language abilities, knowledge of human rights principles, experience in training, mentoring and specialized skills (administration, finance, logistics, forensics, internal investigations), to be on standby for deployment in CIVPOL missions. Incentives should be created so that contributing states are encouraged to send their best officers. Member states should be further encouraged to keep a roster of recently retired police officers who have the necessary background and skills to participate in CIVPOL missions.
c. The UN should apply rigorous recruiting standards and carefully screen CIVPOL candidates before they are sent to the field, ensuring that they possess at least the minimum skills required, such as the ability to drive and to speak the
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mission's working language. CIVPOL officer's conduct should at all times reinforce human rights principles and respect for human dignity.
d. The UN should clarify the respective roles of the OHCHR and the Centre for International Crime Prevention in regard to UN police training, particularly the training of CIVPOL personnel in basic human rights principles. Such training should emphasize international police standards found in core human rights treaties and documents such as the International Covenant on Civil and Political Rights, the Code of Conduct for Law Enforcement Officials, the Basic Principles on the Use of Force and Firearms, and the Standard Minimum Rules on the Treatment of Prisoners. DPKO should provide a basic human rights "package" of documents for all new CIVPOL officers.
3. CIVPOL Field Training Should Be Improved.
a. CIVPOL should develop pedagogical materials for national police training which encourage active learning, including case studies, role-playing and small-group exercises, and avoid the usually passive lecturing method.
b. CIVPOL should adopt a pro-active strategy in the field and accompany national police on patrols, observe their work at close hand and provide immediate assessments of performance. CIVPOL should implement a "train the trainers" strategy as soon as possible to permit national police forces to sustain CIVPOL training after the mission departs.
c. Components of training programs should include police officers, judicial officials, prison guards and administrators and representatives of human rights organizations and civil society in joint sessions.
d. CIVPOL should extend the rotation period of its officers in the field and minimize in-country shuffling of detachments in order to sustain the continuity of local field training efforts.
D. Institution-Building: The Judicial System and the Prisons
1. The UN Mission Should Work with National Institutions and International Donors to Define Its Role Within a Comprehensive Judicial and Prison Reform Strategy.
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a. The OHCHR, UNDP and other UN agencies should review prior UN experience in the coordination of judicial reform projects. The UN "lead agency" approach may not be feasible when bilateral donors provide a significantly larger contribution to reform projects. However, when a UN human rights field presence enables it to evaluate the local needs of the judicial sector and the progress of reform initiatives, the UN should play a central role in developing a consensus on judicial reform strategy among donors, the government and civil society. The UN should request donors to identify their respective contributions so that the sequencing of varying reform programs is addressed.
b. The OHCHR should develop flexible staff recruitment practices to ensure that the appropriate expertise is available as the strategy for judicial reform changes over the life of the mission. The OHCHR and UNDP should draw on the Centre for International Crime Prevention and on other specialized UN agencies for the necessary expertise. To the extent possible, technical staff should be recruited from states with similar legal systems or work experience in countries with similar systems.
Missions Should Make Certain that Insights Gained from Prior Judicial and Prison Reforms are Reflected in the Design of New Projects.
a. Missions should solicit the views and priorities of national and international actors, including NGOs, when designing and implementing judicial reforms.
b. Judicial, prison and police reform strategies should anticipate and attempt to reduce the tensions generated when progress in one institution outpaces that of related institutions. Although it is not likely that reform initiatives will proceed at the same pace in all institutions, missions should emphasize that the sustainability of reforms in any one institution will depend upon improvements in the others.
c. Reform strategies should promote and maintain expectations that are realistic, even modest, recognizing that this is a long-term undertaking. Donor-financed "rapid impact" projects, therefore, should be combined with follow-up measures to ensure that any benefits can be sustained as part of the longer term strategy.
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Recommendations to the United Nations
d. Judicial reform programs should include from the outset access-to-justice projects for the local population, as well as popular education programs to ensure that the public has appropriate expectations for the legal system.
e. The establishment of an oversight institution for the judiciary such as an Inspector General or an independent Judicial Council, should be considered when crafting strategies of reform.
f. Reform strategies should emphasize the importance of improved legal education for the next generation of lawyers and judges. In addition, there should be programs for the current generation targeted at justice ministries, court administration and management, and the training of judges, prosecutors and other judiciary personnel.
E. Institution-Building: National Institutions and NGOs
1. A UN Mission Should, from the Beginning, Develop Working Relations with NGOs Through Regular Interaction, Communication and Cooperation, and Should Maintain These Relationships During the Life of the Mission.
a. The UN should make concerted efforts to share information with local NGOs and national human rights institutions and to elicit information from them for use in planning and implementing institution building projects.
2. The UN Should Explicitly Include Strengthening of NGOs and National Human Rights Institutions in Mission Mandates and Terms of Reference.
a. UN mission planning should include strategies for imparting the skills and knowledge necessary for NGOs to carry on human rights monitoring, investigation and reporting when the UN departs. This should encompass training in the tasks required for human rights protection and promotion, collaborative efforts in the field, and cooperation in devising strategies for long-term funding.
b. The UN mission should strengthen the capacity of NGOs and national human rights bodies to play a substantial role in the mission's institution building activities, utilizing local NGOs to implement projects whenever practicable.
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Honoring Human Rights From Peace to Justice
3. UN Missions Should Avoid Operational Strategies that May Inhibit the Effectiveness of Local NGOs.
a. Each mission should avoid, to the extent possible, hiring qualified members of the NGO community as UN staff, choosing instead to contract with local NGOs for needed skills.
b. The UN should avoid, wherever possible, favoring international over local NGOs in mission planning and implementation discussions.
c. UN mission activities should seek to reinforce the efforts of local NGOs, avoiding whenever possible, replacing or replicating the work of the NGOs.
4. UN Missions Should Encourage the State to Adopt Legislation that Provides for the Legalization and Protection of NGOs and Prevents Government Interference with Their Work.
F. Institution-Building: Human Rights Education
1. A UN Mission Should Develop a Comprehensive,
Sustainable Strategy for Educating About and Promoting Human Rights.
a. A UN mission should develop a comprehensive, long-term human rights program for national educational institutions, local NGOs and the general population, in addition to the training programs designed specifically for the personnel of the institutions receiving technical assistance. UN organs such as UNICEF, UNESCO and UNHCR, along with local NGOs, should be included in both the planning and implementation. To the extent that the capacity of the NGO community permits, the mission should encourage and support local NGOs to undertake most national and local education efforts. UNICEF, UNESCO and UNHCR should incorporate human rights promotion and education in their work with national school systems, in programs for women, for children and in refugee camps.
b. The UN mission should launch a comprehensive education campaign to explain to the population the role of the mission and the significance of human rights. It may be appropriate to include an explanation of the human rights
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standards governing the police and the judiciary in the apprehension, detention, investigation and trial of suspected criminals.
2. The UN Should Develop Standards for the Design and Implementation of Education and Promotion Programs.
a. The OHCHR should develop a general set of human rights education materials that can be adapted to local country conditions. Education and training programs should reflect a knowledge of and respect for local culture and customs, and should be designed around local case studies and issues, address practical concerns, be carried out in local languages by local trainers (when possible), and stress active participation rather than lectures.
b. Missions should be innovative in developing education programs, taking advantage of local cultural practices and popular entertainment such as theater troupes and radio programs in places with low literacy rates.
c. A human rights module should be included in the education programs of the police and military academies and programs for the judiciary. Institutional training programs should emphasize training by peers from UN military contingents, CIVPOL, local and international judges, and regional NGOs.
d. The UN and related agencies should encourage states to include human rights material in the national curriculum for primary and secondary schools, and should provide resources for training teachers about human rights.
e. UN missions should adopt a "train the trainers" strategy that would permit local NGOs and national educational institutions to carry on human rights education after the mission has ended; integrate other UN organizations into human rights education and promotion; and seek a longer-term financing mechanism for local NGO training.
G. Addressing the Past
1. The UN Should Include Addressing the Past Within the Context of Resolving Hostilities.
a. The UN should adopt policies to ensure that UN mediators involved in negotiations to end civil conflicts or remove authoritarian leaders, encourage the parties to
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address underlying issues that may lead to further conflict, particularly past human rights violations. Resolving hostilities and achieving peace should be understood to reach beyond the immediate fighting to those matters essential to a durable peace.
b. While the appropriate programs or mechanisms for addressing the past must be determined by national actors, a human rights mission can offer assistance by outlining options and providing comparative information on other countries' efforts in truth-seeking, reparations for victims of human rights abuses, and programs to advance national reconciliation.
c. Truth-seeking measures such as commissions of inquiry, can serve as a valuable means of establishing, recording and acknowledging the full nature of past human rights violations, but should not be accepted as an alternative to or replacement for judicial action in accordance with international standards.
The UN Mission Should Seek to Strengthen and Assist the Outreach of Commissions of Inquiry.
a. UN missions should help commissions of inquiry to begin their work as promptly as possible. In order to carry out the commission mandate as fully, fairly and expeditiously as possible within its time frame, the commissioners should clarify their understanding of the commission's mandate and determine their methodology, as well as secure office space, hire key staff, and undertake other administrative preparations before formally launching the commission.
b. A UN human rights mission should assist a commission of inquiry in making contact with sources of information for the commission's investigations and should make available as much information as possible from its own files, subject to agreements regarding the confidentiality of sources or information.
c. When a commission of inquiry is headed and staffed by international rather than national personnel, reflecting the preference of the state, attention should be given to how the process and results of the inquiry can be most useful to the work of national institutions and civil society.
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Recommendations to the United Nations
d. UN human rights missions should encourage states to distribute widely the findings of the commissions of inquiry and to incorporate them into the national curriculum for primary and secondary schools (e.g., in national history courses).
3. To Address the Issue of Impunity and to Create a Climate Conducive to the Respect for Human Rights, the UN Should Establish Clear Guidelines on Amnesties for Its Mediators, Negotiators and Field Personnel.
a. The UN guidelines should identify the crimes which cannot be subject to an amnesty under international law, such as those contained in the Geneva Conventions of 1949, the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Nuremberg Charter, and the evolving jurisprudence on "crimes against humanity."
b. While recognizing that the nature of amnesty provisions that may be included in negotiated peace settlements will vary from conflict to conflict, the UN should instruct its mediators, negotiators and field personnel to avoid participating in the drafting, and to object to those provisions of any amnesty that violates the international legal standards identified in the UN guidelines.
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I
1


Combining Institution Building and Human Rights Verification in Guatemala: The Challenge of Buying In Without Selling Out
Leonardo Franco and Jared Kotler
INTRODUCTION
This paper describes the experience of the United Nations Human Rights Verification Mission in Guatemala (MINUGUA) from its deployment in November 1994 through the signing of the final peace agreement between the Guatemalan government and a coalition of leftist rebel groups known as the Guatemalan National Revolutionary Unity (URNG) on December 29,1996.
During this period, MINUGUA was exclusively a human rights mission, operating within a UN-backed peace process aimed at ending the country's thirty-six-year armed conflict. With the signing of the peace accords, MINUGUA embarked on a new phase as a multi-disciplinary mission. It added to its human rights monitoring brief the verification of agreements on guerrilla demobilization and the enactment of far-reaching reforms to fight poverty, end racial discrimination, and strengthen democratic rule.
The Guatemalan Armed Conflict and the Peace Process
Guatemala has been scarred by cycles of extreme political conflict since the CIA-supported overthrow of a democratic government in 1954. The violence spiraled to horrifying heights as revolution swept through the region in the 1980s and then subsided in the 1990s, reduced to a stubborn remnant of the Cold War. Over this thirty-year period, an estimated 150,000 Guatemalans died in the civil wars; the vast majority were civilians killed by Guatemalan
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Honoring Human Rights From Peace to Justice
Army forces and allied paramilitary units. Hundreds of villages were emptied from 1981 to 1983, their inhabitants massacred in "scorched earth" counterinsurgency sweeps or driven into exile or internal displacement. About one million Guatemalans, mostly highland Mayan Indians, abandoned their homes, 50,000 of them taking refuge in Mexico.
By the mid-1980s, the worst of the violence was over. The Guatemalan Army had decimated the guerrillas militarily, effectively ending their chances of taking power by force. In the years that followed, the URNG combatants never numbered more than a few thousand, and were largely reduced to hit-and-run attacks on Army patrols or bases and economic sabotage. This activity was enough, however, to convey an image of political instability that discouraged investment and frustrated official attempts to downplay the problem. The URNG remained active in the international political realm, cultivating condemnation of Guatemala's human rights situation and building support for a negotiated solution to the conflictone that would trade guerrilla disarmament for the enactment of democratic reforms.
When peace was finally attained, it ended a decade of internationally-backed efforts to reach a negotiated solution. The final phase took place from 1994 to 1996 under UN auspices. In January 1994, the Government and the UNRG signed the Framework Agreement for the Resumption of the Negotiating Process in which the UN was asked to moderate future peace talks and to verify all agreements reached. The same accord gave rise to an Assembly of Civil Sectors (granting civil society crucial input into the substantive agenda of the talks) and broadened international involvement by creating a Group of Friends to the Guatemalan Peace Process (consisting of the Governments of Colombia, Mexico, Norway, Spain, the United States, and Venezuela).
On March 19, 1994, the Government and URNG signed the Comprehensive Agreement on Human Rights, pledging to respect human rights and requesting the immediate establishment of a UN human rights mission in Guatemala. It was a major breakthrough the first substantive agreement in the UN-moderated negotiations that would culminate in the signing of a final accord in Guatemala City in December 1996. By that time, subsequent agreements had been signed governing the resettlement of uprooted populations; the establishment of a truth commission; the recognition of the identity and rights of indigenous peoples; the enactment of socioeconomic and agrarian reforms; the strengthening of civil authority; and the redefinition of the army's role in a democratic society. Operational
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Combining Institution Building and Human Rights Verification in Guatemala: The Challenge of Buying In Without Selling Out
accords were signed establishing, among other things, terms for a cease-fire and guerrilla demobilization, and a selective amnesty for crimes committed by both sides in the armed conflict.
The final drive to peace took place under the right-center Government of President Alvaro Arzu Iriguyen, which was elected and took office in January 1996. Although some observers feared the coming to power of a conservative government would set back peace negotiations, the opposite occurred. Despite ideological differences, the two sides shared a strong interest in ending the conflict. The Government knew that the foreign investment and aid needed to drive its economic modernization project could not prosper if the country remained at war. The URNG, aware that a military victory was impossible and deprived of the international support it once enjoyed, saw that conditions were as good as they would ever be for pursuing its political goals through electoral competition. Both sides were also influenced by a growing pressure for peace from Guatemalan civil society and the international community.
Conditions on the Ground: The Host Country Environment
Following the pattern of neighboring El Salvador, human rights verification began while the fighting still continued. In taking the risk of verification at this time, the UN and the parties to the conflict gambled that the presence of a human rights mission would reduce human rights violations while spurring the peace process forward. But even as the UN accepted the challenge in Guatemala, doubts persisted within the organization and the international community as to whether the peace process (and the Mission) could succeed in such a difficult host-country context. Guatemala presented unusual challenges because of the size of its indigenous population, concerns about state sovereignty, and the risks of operating a mission in the middle of a civil conflict.
Almost two-thirds of Guatemala's eleven million inhabitants belong to one of nearly two dozen Mayan ethnic/language groups, making Guatemala one of the most "indigenous" countries in Latin America. The Mayan majority has been politically, socially, and economically subordinated to a European-descended and mixed-race (ladino) minority since the Spanish Conquest. This long-standing mar-ginalization made the indigenous population the most vulnerable sector of Guatemalan society and the principal victim of human rights violations. In vast areas of the country, verification and dissemination of the mandate would have been impossible without the use of translators, and without great sensitivity to indigenous cultural attitudes.
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Honoring Human Rights From Peace to Justice
Guatemalan concerns about sovereignty, stemming from a history of foreign intervention and the more recent experience of international isolation, posed another major difficulty. Tensions generated by the sensitivity over sovereignty increased after the election of President Arzu in 1996. President Ramiro de Leon Carpio (1993-95), a former human rights ombudsman whose government had signed the Comprehensive Agreement on Human Rights, had welcomed international criticism, apparently feeling this openness conveyed an image of tolerance and strengthened his hand against hard-line groups opposed to reforms. The Arzu government, which enjoyed political support among some of the more nationalistic sectors, took the opposite approach, constantly urging MINUGUA to take a lower profile. The Mission's verification role was reluctantly accepted, but not particularly welcome.
Guatemalan society had mixed feelings about MINUGUA's presence. For victims and human rights activists, the MINUGUA presence was undoubtedly reassuring as a potential source of relief and impartiality. But for others, particularly the upper classes in the capital and provincial cities, the Mission was often a source of irritation.
Unlike in El Salvador, where a peace agreement was signed six months after the UN Observer Mission in El Salvador (ONUSAL) was installed, MINUGUA remained a human rights mission for more than two years before the conflict formally ended. For the better part of this period, peace did not at all seem inevitable. The longer-than-expected negotiating process created a feeling of instability since it was always possible that the Mission could be withdrawn in the event of a breakdown in the talks. MINUGUA was given only short-term extensions of its mandate, and thus often felt as if the sword of Damocles were hanging overhead. The stretching out of the negotiations also left MINUGUA overexposed politically within Guatemala. While the Government and the URNG in talks in Mexico discussed sensitive economic and political reforms, conservative groups inside Guatemala looked for outlets to convey their opposition. As the most tangible expression of the peace process, MINUGUA bore the brunt of these groups' hostility, which was directed more toward that process as a whole than the Mission itself.
MINUGUA had to weather political and physical attacks in the absence of the greater cover it would have enjoyed as a peacekeeping mission verifying a final peace agreement. The worst attack came in October 1995, when gunmen sprayed machine-gun fire at the MINUGUA field office in Guatemala City on the eve of national elections, luckily causing only property damage.
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Combining Institution Building and Human Rights Verification in Guatemala: The Challenge of Buying In Without Selling Out
The prolonging of the negotiations also meant a continuation of the armed conflict, which was of relatively low intensity during MINUGUA's tenure, but which still restricted the mobility of observer teams and may have inhibited the population from approaching the Mission. The ongoing conflict contributed to a high level of ideological confrontation among different sectors of the civilian population. Human rights violations connected to the armed conflict continued, such as URNG threats against landowners who refused to pay the so-called war tax or abusive Army incursions into civilian areas. It is unlikely that events such as the Army massacre of eleven members of a returned refugee community in October 1995 would have occurred during a cease-fire or in a post-conflict situation.
In one key aspect, however, the Guatemalan context was more favorable than expected at the time the Mission was deployed. The human rights situation, while still very worrisome, had greatly improved relative to earlier periodsthe worst era of human rights violations had ended by the mid-1980s. Political space had been gradually opening along with the return to civilian rule and other reforms mirroring democratization trends in Latin America as a whole. By the early 1990s, many exiles had returned and were active on the political scene, including the Nobel Prize-winner Rigoberta Menchu. A strong human rights community existed, including Guatemala City-based groups such as the Archbishop's Human Rights Office, the Myrna Mack Foundation, and the Center for Human Rights and Legal Action. The press was active and operated with substantial freedom, regularly criticizing government policy. Death threats with political overtones were still common, but their origin was unclear and they were seldom carried out.
In the rural areas,-improvements were less dramatic. The armed conflict had militarized Guatemalan civil society, leaving behind structures and mentalities that sustained high levels of human rights violations for many years. The Army remained practically the only state presence in vast regions. Where fighting still continued, URNG and Army tactics placed civilians at risk and maintained the polarization in the civilian population. Mayan-based human rights organizations and popular groups were active, but faced harassment and occasional violence. Paramilitary groups were less active than before, but several hundred thousand military commissioners and civil patrollers remained loosely organized in former conflict zones, often bullying the local population. Land conflicts were a major sources of instability, resulting in violent clashes between communities or between land squatters and Government forces.
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Honoring Human Rights From Peace to Justice
MINUGUA'S MANDATE: THE HUMAN RIGHTS AND INDIGENOUS AGREEMENTS
MINUGUA's raison-d'etre was the Comprehensive Agreement on Human Rights (the Human Rights Agreement), which gave the Mission a dual mandate: to verify compliance with a series of commitments on human rights and to strengthen national human rights institutions. The work of the Mission was greatly facilitated by the clarity, comprehensiveness, and self-executing character of the Human Rights Agreement. The accord gave MINUGUA a clear mandate to deal with sensitive situations and make independent and often high-profile statements on human right violations and the responsibilities of both parties. It may be the most complete instrument to date governing the activities of a UN human rights field mission.
The verification mandate applied to three general commitments in the Human Rights Agreement (to respect human rights, strengthen national institutions that protect human rights, and combat impunity) as well as specific commitments to suppress illegal security forces and clandestine security structures, and to continue with the cleansing and professionalization of the armed forces; regulate the bearing of arms; insure that participation in the civil defense patrols is voluntary; insure that military conscription is not forced; insure the protection of individuals and entities working in defense of human rights; and insure compensation and assistance for victims of human rights violations. Both sides also agreed to eliminate the suffering of the civilian population as a result of the armed conflict and to insure respect for the human rights of wounded, captured, or disabled combatants. The URNG undertook "to respect the inherent attributes of the human being, and to contribute to the effective enjoyment of human rights."
In verifying these commitments, the Mission was instructed to pay particular attention to civil and political rights, as well as to the situation of vulnerable groups of society and the population directly affected by the armed confrontation, including displaced persons, refugees, and returned refugees. In verifying the general commitment on human rights, MINUGUA's responsibilities were to receive, consider, and follow up complaints of possible human rights violations; establish whether the competent national institutions had carried out the necessary investigations autonomously, effectively, and in accordance with Guatemalan and international human rights norms; and determine whether a violation had occurred.
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Combining Institution Building and Human Rights Verification in Guatemala: The Challenge of Buying In Without Selling Out
The Human Rights Agreement gave MINUGUA the right to
establish itself and move freely throughout the national territory;
interview any person or group of persons freely and privately;
visit government facilities and URNG encampments freely and without prior notice; and
collect all information relevant to the implementation of its mandate.
The Mission was also empowered to make recommendations to the two parties and to inform the Guatemalan public of its activities and findings. It was required to issue periodic reports to the UN Secretary-General. The Mission was authorized to cooperate with national institutions and entities for the effective protection and promotion of human rights by sponsoring technical cooperation programs and carrying out institution-building activities. Special attention was to be given to the judiciary and its auxiliary organs, the Public Prosecutor's Office, the Human Rights Counsel, and the Presidential Human Rights Committee (COPREDEH). The Mission was also mandated to contribute to the building of a culture of respect for human rights.
MINUGUA's mandate was expanded in March 1995 with the signing of the Agreement on Identity and Rights of Indigenous Peoples (the Indigenous Agreement). In this revolutionary accord, the Parties officially recognized the identities of Guatemala's indigenous groups and the historical problems of discrimination and injustice they faced; they committed to overcoming this legacy, particularly through the participation of indigenous peoples in a reform process that would institutionalize the country's ethnic, linguistic, and cultural diversity.
In contrast to the Human Rights Agreement, the Indigenous Agreement left broad room for a MINUGUA role. The accord as a whole did not enter into effect until the signing of the final peace accords, but its human rights aspects were effective and verifiable immediately by the Mission. The Agreement provided no instructions as to the scope or methodology of verification other than to say they should be decided in consultation with indigenous organizations.
GETTING UNDER WAY: PLANNING, RECRUITMENT, TRAINING, AND DOCTRINE
MINUGUA was approved by the UN General Assembly on September 19,1994, nearly six months after the signing of the Human
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Honoring Human Rights From Peace to Justice
Rights Agreement. By the time MINUGUA finally opened its doors to the Guatemalan public on November 21, 1994, nearly eight months had elapsed. This painful delay may have had a humanitarian cost; however, it was beyond the control of Mission planners.
A Preliminary Mission visited Guatemala and Mexico one month after the signing of the Human Rights Agreement, assessing requirements for MESTUGUA and reporting to the Secretary-General in early May that the Mission should be installed immediately. General Assembly approval was delayed, however, both for tactical reasons (to pressure the Parties to jump-start stalled negotiations) and as the result of UN organizational disagreements (diplomatic differences over the appropriate UN organ to approve and oversee the Mission). Since MINUGUA was to begin as a human rights-only operation prior to a final peace agreement, the Mission was placed under the General Assembly instead of the Security Council. This decision created a larger umbrella for MINUGUA, but it made for a politically and financially less agile Mission.
Once MINUGUA was given a green light at the political level, planning moved rapidly. One day after the Secretary-General named Leonardo Franco as Mission Director, an advance team was dispatched to Guatemala. A Technical Preparatory Mission completed an impressive number of tasks, all of which contributed to swift and effective deployment of the Mission. Among these were the preparation of a Verification Procedures Manual and a Reference Manual, complete with guidelines on staff conduct and background information on Guatemala and the peace process.
By November 21, 1994, two months after General Assembly approval, MINUGUA had opened its doors and was verifying human rights in Guatemala. By the end of February 1995, personnel strength approached 300, including 211 international staff from thirty-six countries. The Mission had also achieved national coverage, through the establishment of a headquarters in Guatemala City, and eight regional and five subregional offices. Several of the offices were reachable only by airplane and helicopter transportation. At full strength, the Mission would employ about 450 individuals.
Recruitment
Recruitment was more difficult than it should have been because of the lack of a specialized personnel roster for human rights field missions in New York and Geneva. MINUGUA was fortunate in that its creation coincided with the downsizing of ONUSAL in El Salvador and MICIVIH in Haiti. This allowed for a rapid "horizontal" transfer of personnel from these missions.
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Combining Institution Building and Human Rights Verification in Guatemala: The Challenge of Buying In Without Selling Out
Military advisors, liaison officers, and civilian police observers were recruited primarily from Spain, Brazil, Colombia, Venezuela, Uruguay, and Italy. Many of the military and police personnel performed extremely well, making key contributions to human rights monitoring; verification of aspects relating to the armed conflict would have been impossible without their expertise. However, others were inappropriate choices for a human rights mission, lacking either the relevant experience, commitment to human rights, or both. MINUGUA had practically no input in the selection of personnel, and the contributing countries provided persons based on criteria unrelated to the needs of the Mission. Transit or border police, for example, were sent instead of judicial or investigations police. Many did not speak Spanish well enough. Moreover, police observers were sent only on a six-month basis (renewable up to one year at the request of the observer). In the Regional Offices, the short-term presence of the' police observers was often more disruptive than beneficial.
Civilian human rights observers were recruited through the United Nations Volunteers Program. The performance of the Volunteers (UNVs) was generally excellent, thus validating the decision to hire from this important pool of resources. They performed delicate duties, in hardship locations, with dedication and neutrality. Several outstanding UNVs were promoted to professional positions as Political Affairs Officers or transferred to substantive sections in the headquarters. Although such opportunities were limited, the possibility of headquarters assignments or ascension to professional posts was a motivating factor for some UNVs.
Training
At the beginning of the Mission, new civilian and military personnel were required to attend a multi-day specialization seminar, led by senior Mission staff and with the participation of invited guests from governmental and nongovernmental institutions. The specialization courses gave new staff a basic introduction to the Guatemalan context and to the Mission's role, structure, and policies. It also allowed them to ask questions and to go through role-playing scenarios.
As the Mission progressed, however, it became difficult to arrange for training on arrival. New staff would arrive steadily, but not in large numbers at once, making it impractical to give the training course to all members immediately on arrival. Thus many human rights observers were sent to field offices without any training, only to be invited to a specialization course after having already spent several months in MINUGUA. In these cases, it was up to the Regional
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Honoring Human Rights From Peace to Justice
Offices to provide new staff with the basic training they needed. Human rights observers were given additional training as new issues arose, or as Mission policies were modified, through seminars at headquarters or field visits by headquarters staff.
Institutional Experience
MINUGUA was seriously handicapped by the absence of a UN human rights field operation institutional memory. While MINUGUA was initially able to draw on the experience of former ONUSAL (El Salvador) and MICIVIH (Haiti) staff, it rapidly suffered from a process of "insularization." MINUGUA had no contact with analogous missions such as the one in Rwanda. It also lacked the means to disseminate its own experience. Although the Mission received consistent support on political and institutional matters from the Department of Political Affairs, it received little or no feedback on issues of substance related to international human rights or humanitarian law, some of which had direct bearing on the everyday activities of the Mission. Contacts were established with the Human Rights Centre in Geneva, with a view to liaising more effectively on these kinds of questions, but this strategy bore very limited results.
HUMAN RIGHTS VERIFICATION IN ACTION
Rapid deployment of the mission throughout the country, the availability of a verification manual, and the previous experience of many staff members enabled MINUGUA to carry out intensive human rights verification from the outset. Nongovernmental organizations (NGOs) also played a critical role at this stage, encouraging victims to approach the Mission with complaints of human rights violations.
In its first three months, MINUGUA received approximately 1,000 complaints of alleged human rights violations, 288 of which were admitted for verification. As the Mission expanded its education activities and presence throughout the country, the number of human rights complaints rose significantly. During the first year, the Mission received 7,700 complaints, admitting 1,567 for verification. During 1996, it admitted an additional 891 complaints.
The decline in the number of admissible complaints was not due to a decline in complaints themselves, which stayed at a very high level, but were increasingly related to situations outside the human rights verification mandate (principally land claims and common
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Combining Institution Building and Human Rights Verification in Guatemala: The Challenge of Buying In Without Selling Out
crimes). At the end of 1996, the Mission reported it had turned away 90 percent of the complaints received.
Critical Working Relationships
Verification was facilitated by the establishment of bilateral mechanisms for dialogue between the Mission and the parties to the peace accords. These included frequent meetings between the Mission Director and the President of the Republic and other authorities in Guatemala City and monthly meetings in Mexico City with URNG leaders. MINUGUA used these meetings to inform the parties of cases of presumed violations in which either the Government or the URNG had been implicated and to receive information that would help complete the investigations.
Important working relationships were also established at the local level between MINUGUA field offices and elected authorities, representatives of the police and army, judges and prosecutors, the Office of the Human Rights Counsel, church officials, indigenous communities, nongovernmental organizations, and other sectors of society. MINUGUA also had field contacts with URNG fronts; these contacts increased after hostilities were suspended in early 1996.
Direct access by MINUGUA staff members to trials, and particularly to written proceedings, was a delicate matter. Many judges and prosecutors resented the Mission's claim that the peace agreements authorized its access to the courts, feeling this amounted to outside interference with the autonomy of the judiciary. Considerable effort was needed to overcome those reactions, which were understandable, and would have been entirely justified in the context of a modern, impartial, and efficient judicial system. Relationships with top-level officials as a result of the institution-building work were at times useful for easing resistance down through the ranks to MINUGUA's verification presence.
Public Reporting
The Mission Director issued six reports through the end of 1996 dealing solely with compliance with the Human Rights Agreement. These reports were presented to the General Assembly by the Secretary-General on the same day they were released by MINUGUA in Guatemala. The reports received broad coverage in the national media, and were generally praised for balance and forthrightness. While often noting positive developments, the reports described a situation of ongoing, serious human rights problems and a failure by both sides to fully comply with the terms of the Human Rights Agreement. Although the reports often included criticisms of the
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Honoring Human Rights From Peace to Justice
Parties and state institutions, the findings were rarely contested in public, those criticized choosing instead to express disagreements with the Mission privately.
The Mission faced a dilemma as to how often it should make public statements about the human rights situation. It decided to speak loudly but infrequently, issuing a major report every few months, as opposed to offering a constant stream of results. During 1996, MINUGUA switched from a three-month to a six-month reporting period, mainly because the Mission felt three months was not enough time for identifying real trends in the human rights situation. Unfortunately, this change in reporting fed the perception of human rights groups that the Mission had lowered its profile for political reasons. Another factor that fed this perception was the increasing recognition of positive steps taken by the Government. As Mission reports reflected more positively on Government actions, media coverage declined, reinforcing the impression that MINUGUA was seeking a lower profile.
The reporting process was time consuming and weighed down by UN regulations: A UN rule prohibited the Mission from issuing its reports in-country until they had been translated into all official UN languages and presented to the General Assembly. This rule meant a delay of up to two months from the close of the verification period to the date of publication in Guatemala. At times, the Mission's reports seemed outdated on delivery. With regulations also limiting the length of reports, individual case results were increasingly left out or reduced to a bare minimum. This took away rich detail and irritated human rights NGOs, who understandably expected MINUGUA to give results on cases they were involved with, and for which they had steered complaints toward the Mission. To remedy the problem of length, MINUGUA turned to issuing supplements with the official report. The supplements were released only in Guatemala, and gave detailed findings on individual human rights cases.
Despite its problems, the public reporting process was essential. On the one hand, it served as an incentive for good behavior, keeping both parties on notice that violations would be made public. The reports also focused national attention on human rights, and in particular on the issue of impunity. This focus helped to legitimate a human rights discourse previously labeled as subversive, and helped to move the public debate toward a common diagnosis of the problems to be overcome. Finally, the reports set an example of objectivity that will be crucial for the Guatemalans to build into their own work.
For example, the Mission issued a special verification report five days after an October 1995 massacre at Xaman (in the northern department Alta Verapaz), blaming an Army patrol for firing indiscriminate-
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Combining Institution Building and Human Rights Verification in Guatemala: The Challenge of Buying In Without Selling Out
ly at unarmed refugees and killing eleven persons. MINUGUA acted in the hope that its report would help to establish the truth, marginalizing contradictory versions coming from opposite sides of the political spectrum, and defusing tensions around a polarizing event. This advantage would have been lost had the Mission waited to publish its results months later, as part of a report to the General Assembly.
The Xaman verification demonstrated how a human rights mission can contribute to a country's moral and institutional reconstruction by clarifying facts and responsibility where previously adversaries systematically blamed one another, creating enormous confusion in society. This positive role can also have a negative connotation: Unless the judiciary and other institutions quickly catch up, the Mission may be viewed as administering a form of "parallel justice," unintentionally replacing the appropriate state organs.
Main Findings: Problems of Impunity and Public Security
MINUGUA placed the greatest emphasis in its reports on the problem of impunity, which it repeatedly labeled "the most serious obstacle to the enjoyment of human rights in Guatemala." The State's failure to provide justice was, of course, a well-known feature of the Guatemalan situation before MINUGUA's arrival; however, on-site verification quickly confirmed the scope of the problem. The Mission's first report highlighted the defective functioning of the courts, the public prosecutor's office, and the security forces responsible for preventing and punishing crime; the existence of criminal associations linked with drug trafficking, car theft, and timber smuggling and with financial or other interests, which may enjoy the support, complicity, or tolerance of state agents; the autonomy and the procedures of the Army in its counterinsurgency activities and the broad interpretation given to those activities; the control exerted over rural communities by military commissioners and civil defense patrols; and the proliferation of firearms.
MINUGUA extended this analysis in subsequent reports while emphasizing that the fight against impunity was a shared responsibility of the various branches of the state. This was a useful concept in that it permitted the Mission to distinguish between problems that could be resolved by action of the central government and those which required concerted action by all branches. In many cases, action by the security forces (e.g., the capture of alleged criminals) was not followed by equivalent actions by prosecutors and judges. MINUGUA stressed the need for an "integral policy" against impunity, and recommended measures to strengthen all of the key institutions of the justice and public security systems.
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Honoring Human Rights From Peace to Justice
By the end of its second year, the Mission had confirmed a clear downward trend in traditional human rights violations. This was reflected in figures on human rights complaints contained in MINUGUA's sixth report, which revealed a 46 percent drop between 1995 and 1996 in the number of admissible complaints, as well as changes in the gravity and authorship of human rights violations. In 1995, nearly 45 percent of violations were attributed to the main actors in the armed conflict (the Army, military commissioners, civil defense patrols, and the URNG), and these tended to be very serious in nature. In 1996, this figure had dropped to 34 percent, while violations attributable to the National Police, Public Prosecutor's Office, and Judiciary grew, rising from 31 percent in 1995 to 43 percent of the violations reported in 1996. Many of these were due process violations.
Improvements were also reflected in policy decisions by the Parties, and in actions by society at large that indicated improvements in human rights and the battle against impunity. These measures included the dissolution of the system of military commissioner and civil defense patrols, which amounted to a formal dismantling of the civilian counterinsurgency apparatus in the rural areas; the unimpeded participation of a new leftist political party, resulting in the election to Congress of several well-known human rights activists in 1995; and the decision by the Government and the URNG to declare a virtual cease-fire in March 1996, thus ending combat deaths and reducing the suffering of the civilian population.
Addressing the Past
Under the peace accords, the main responsibility for addressing past human rights violations in Guatemala was given to a truth commission, which was established six months after the signing of the peace agreement. MINUGUA's mandate covered only "events and situations subsequent to its installation."
The Mission respected this limitation, but still took an active interest in historical human rights cases. The due process angle was important in that it allowed MINUGUA to support demands for justice in human rights cases that were seen as barometers of progress in the fight against impunity. MINUGUA closely followed judicial action in well-known cases, including the 1990 murder of anthropologist Myrna Mack; the 1992 forced disappearance of URNG commander Efrain Bamaca, a case made famous by the efforts of U.S. lawyer Jennifer Harbury to reveal the truth; the 1993 killing of politician Jorge Carpio Nicolle; and the 1994 death of a student, Mario
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Combining Institution Building and Human Rights Verification in Guatemala: The Challenge of Buying In Without Selling Out
Alioto Lopez Sanchez. But given the vast numbers of past violations, the Mission had to be very selective in its monitoring of due process in such cases.
Human Rights and Crime
The Mission drew heavy attention in its reports to the dramatic increases in violent crime, and the worsening of the public security situation, making recommendations to the Government on how to combat these problems. In its sixth report, MINUGUA declared that violent crime had become "the main impediment to the enjoyment of rights in Guatemala." Although the trends were not always reflected in official statistics, Guatemalans at all levels of society experienced an increase in crimea problem typical of Central America as a whole, and particularly of countries emerging from periods of armed conflict. In rural areas armed bands terrorized the highways, robbing cars and buses and sometimes killing uncooperative victims. Similar patterns were seen in the capital, where more affluent Guatemalans also suffered a devastating wave of kidnappings.
As public concern about crime worsened, MINUGUA found its positions coming into conflict with a growing public clamor for drastic responses to crime, which included a horrifying spate of mob justice, in which dozens of suspected criminals were beaten to death or burned alive by angry crowds; the spread of citizen vigilante groups and the reactivation of civil defense patrols as "security committees;" the increased involvement of the Army in public security; and growing support for the death penalty. In all of these situations, the Mission called for more effective measures against crime and raised concerns about the human rights impact of certain Government policies and popular practices.
Particularly in the matter of the death penalty, the Mission's actions brought it squarely against the tide of public opinion, which strongly supported capital punishment as a means to combat crime. MINUGUA was severely criticized when it sought to stay the execution of two men convicted of raping and murdering a child in September 1996. Although MINUGUA's intervention was justifiable on human rights groundsthere had been serious violations of due process its actions placed the Mission in opposition to the prevailing law-and-order mood, and seemed to cement in popular opinion and among conservatives the idea that "human rights protects criminals." The case also moved the Mission into a murky area that related only indirectly to human rights problems deriving from the Guatemalan armed conflict.
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Humanitarian Law and the Question of URNG Violations
As a condition of its participation in peace negotiations, the Guatemalan government was never required to accept that the country was in a state of civil war. The lukewarm expression "internal armed confrontation" was used instead, and international humanitarian law was not invoked in the Human Rights Agreement. The parties agreed instead to "stop the suffering of the civilian population" caused by the conflict.
As has been the case in other countries, the Government incorrectly believed that application of the Geneva Convention would grant bellicose status to the guerrillas. Although MINUGUA explained that application of Common Article 3 of the Geneva Convention would not affect the legal status of the parties to the conflict, the Government took the distinction seriously, warning MINUGUA that it would be stepping on a minefield, so to speak, if it tried to apply humanitarian law in its verification.
MINUGUA agreed to disagree, explaining that it would apply certain basic principles of humanitarian law, and giving the legal justification for this position. But it was probably less the legal reasoning than the fact that the Mission rigorously applied the same criteria to armed actions of both sides that ultimately assuaged Army concerns about MINUGUA's approach. Over time, and no doubt influenced by MINUGUA's presence, both sides made greater efforts to avoid human rights abuses in their military operations.
URNG abuses posed a special dilemma. In the Human Rights Agreement, the URNG agreed to respect "the inherent attributes of the human being and to contribute to the effective enjoyment of human rights." Based on this language, MINUGUA took the position that the URNG could be held responsible for human rights violations. Both sides accepted this view even though it is not yet a part of generally accepted international law.
Socioeconomic Rights: The Problem of Land Conflicts
Conflicts over land were a major destabilizing element in Guatemala, resulting frequently in violence and human rights violations. The conflicts took many forms, but the most sensitive were the peasant invasions of large agricultural estates. These actions surged during MINUGUA's tenure, infuriating conservative landowners, and presenting policy dilemmas for the Mission. The landowners saw the invasions as a violation of private property rights, and demanded that MINUGUA denounce them. Peasant groups rejected these arguments, often presenting historical claims to the same lands, and urging MINUGUA to take their side of the issue.
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The Human Rights Agreement offered some guidance, but no definitive answers for dealing with the situation. One thing was clear: MINUGUA had no mandate to rule on the validity of land claims in Guatemala. The warring parties had left this, the country's thorniest social issue, to be negotiated in the May 1996 Agreement on Socioeconomic Issues and the Agrarian Situation. The Human Rights Agreement did, however, require MINUGUA to verify that land conflicts were resolved without recourse to violations of individual rights.
It was under this rubric that MINUGUA accepted a Government request that it observe the conduct of police forces during land evictions. MINUGUA believed initially that its presence would discourage violence, but it later revised this view and abandoned the observation of evictions. The turning point came in April 1996, when MINUGUA observers witnessed a violent clash between squatters and police on an estate in San Marcos, resulting in the death of a police officer. The Mission began to seriously doubt its dissuasive capacity after this incident, and also became concerned about the security of its observers. In addition, MINUGUA worried that its presence at land evictions was tantamount to condoning repression as a strategy for resolving what was essentially a political problem.
Verifying Ethnic Discrimination
Although the Indigenous Agreement was vague as to MINUGUA's mandate and methodology for verifying its human rights aspects, MINUGUA's initial approach was to document cases of unequal treatment and discrimination against indigenous peoples using essentially the same case-based verification methodology applied in the Human Rights Agreement. This approach yielded meager results and was discarded after a lengthy trial period in which indigenous people did not approach the Mission in significant numbers to present complaints. The reasons were complex, but it would appear the indigenous peoples tended to view their problems in terms other than discrimination or denial of cultural rights. MINUGUA came to fear that its case approach would understate discrimination, thus undermining efforts to combat it. The Mission therefore adopted an alternative approach, making discrimination a key focus in the verification of cases under the Human Rights Agreement. MINUGUA was able to establish, for example, that indigenous persons were more likely to be arrested for minor crimes and mistreated in detention.
MINUGUA also incorporated a focus on indigenous affairs in its institution building and educational work. In institution building, the strategy was to strengthen entities that protect and defend indigenous
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rights, to facilitate access to the justice system by indigenous peoples, and to fight legal and other forms of discrimination. Assistance was channeled to the Department of Indigenous Affairs of the Office of the Human Rights Counsel, and to decentralized justice sector projects in Nebaj and Quetzaltenango, both heavily indigenous areas. The Mission gave sustained support to efforts by Mayan groups to participate in the reform process envisaged in the Indigenous Agreement.
Together with UNESCO, MINUGUA supported national efforts to translate the Indigenous Agreement into the most commonly spoken Mayan languages. The Mission's regional offices were staffed with indigenous rights specialists who organized workshops and seminars to promote the dissemination of the Agreement and worked with indigenous organizations to support their participation in the Joint Commissions.
INSTITUTION BUILDING IN ACTION
Institution-building projects were developed from the outset of the Mission. A fundamental early step in the development of these activities was the creation of a coordinating body between MINUGUA and the office of the United Nations Development Program (UNDP). The purpose of this Joint Group was to define strategies, design appropriate projects, and promote international assistance for human rights institutions. The decision to create it was based on a reading of the experiences of previous human rights missions, which had generally lacked effective coordination with the permanent UN agencies and had not always planned for the continuation of institution-building activities after the end of the mission.
The body coordinating with UNDP was an improvement, but it did not eliminate entirely the inherent tensions between these types of missions and the permanent development agency. Competition still arose over who should control the institution-building portfolio. MINUGUA had to defend its turf, arguing that cooperation in the human rights and justice sector should remain in the Mission, so as to take advantage of synergies with human rights verification.
Donor response to the institution building mandate was enthusiastic. By the end of 1995, contributions to a Trust Fund managed by t MINUGUA totaled $3.6 million. By February 1997, this figure had climbed to approximately US $8.5 million. The largest donors were Sweden, Norway, and the United States. As described below, donations supported projects in practically all of the key institutions affect- a ing human rights.
i
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State Institutions
Public Prosecutor's Office. MINUGUA invested heavily in the Public Ministry, Guatemala's public prosecutor. The Mission's arrival coincided with a major overhaul of the criminal procedures code that gave this historically weak institution the lead role in criminal investigation and prosecution. Human rights cases would have had no chance of succeeding without an energetic response by this body. In the first phase of the project, begun in February 1995, MINUGUA experts worked on a reorganization of the Guatemala City prosecutor's office, trained prosecutors on applying the new code, and worked with them to develop strategies for investigating and presenting cases. A second phase included assistance in a broader reorganization, professionalization policies (including a new system for selecting prosecutors), and the establishment of a disciplinary system. The Mission also contributed to the design of an overall criminal policy and to improving coordination with the National Police, a need strongly signaled by human rights verification field work.
Police and Prisons. The Guatemalan Government chose a bilateral cooperation program with Spain to guide the creation of the new National Civilian Police called for in the peace accords, thus limiting MINUGUA's potential role. However, MINUGUA developed technical assistance programs with the relevant ministry in four areas: curriculum development and instructor training in the National Police Academy; criminal investigations capacity; coordination with the Public Ministry; and the penitentiary system. The work on the penitentiary system was heavily informed by the Mission's verification efforts, which involved frequent visits to prisons, providing an accurate picture of the conditions of detention. MINUGUA hired experts to conduct a study of the prison system and to draft a new penitentiary law. A second phase of the project provided assistance with the selection and training of prison officials.
The Judiciary. MINUGUA also developed institution-building activities with the Supreme Court, which overseas the entire judicial branch. The Court was highly sensitive about outside intervention and jealously guarded its independence, making it a reluctant partner. The level of penetration achieved in the Public Ministry, where MINUGUA consultants literally shadowed prosecutors in their work, would have been impossible in the judicial branch. Eventually the Mission was able to carve out space through its support of the Judicial Training School, which is part of the Court, and a donation for computerizing information and connecting courts through a computer network. A second phase of this project focused on improving the
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selection and training of judges and drafting a law establishing the rules for judicial promotion. The Mission also made a major commitment to strengthening the Public Defender's Service, which sits administratively under the Court. MINUGUA's efforts combined training and accompaniment of the public defenders in their work with the drafting of a new governing statute that would make the Public Defender Office an autonomous independent body.
Congress. MINUGUA worked closely with the legislature, providing technical advice on the drafting of legal reforms affecting human rights. The Mission assisted in drafting important laws on the rights of children, domestic violence, reform of the penal code, and establishing the judicial career. Once the final peace agreement went into effect, this project was broadened to support legislation needed for the implementation of the Peace Accords as a whole.
Human Rights Ombudsman. The Office of the Human Rights Counsel, Guatemala's human rights ombudsman, was considered a high priority, especially if impartial human rights investigations were to continue after MINUGUA's eventual withdrawal. Yet it proved a wary collaborator, largely because its chief seemed to view MINUGUA as a threat rather than an ally. With a meager budget and little recognition from the Government, the Counsel was understandably envious of the Mission's prestige and vastly superior resources. But its defensive attitude made it difficult for MINUGUA to help. Despite the lack of confidence, MINUGUA was able to assist the Counsel in strengthening its capacity to investigate and in its work on indigenous rights. The Mission has also supported the Counsel politically, repeatedly urging the Government to increase its budget and to pay greater attention to its resolutions. There was also significant collaboration with MINUGUA field offices, for whom the Counsel's local representatives were the most important partners in educational activities.
Decentralized Projects
MINUGUA developed "decentralized" projects in rural areas, aimed at creating working examples of how to improve access to the justice system for the indigenous population. Although centralized projects dominated the institution-building portfolio of the Mission, by February 1997 funds assigned to the decentralized projects had climbed to 20 percent of the overall project budget.
The centerpiece project is the Center for Justice Administration in Nebaj, Quiche. With Swedish funding and the support of the Government and Supreme Court, this project is bringing specially trained police, prosecutors, and courts to the Ixil Triangle, one of the
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most war-torn areas of the Indian highlands. The project includes the selection of indigenous persons, the use of indigenous languages, and the training of justice officials in Mayan culture and customary law.
Another noteworthy initiative is the multilingual justice project in Quetzaltenango, the country's second-largest city. This project aims to form a corps of legal interpreters in the two main indigenous languages, Kiche and Mam, and to develop a model for local participation in project design, implementation, and evaluation. It is also connected to efforts to study customary law and to develop legal terminology in indigenous languages.
A third major project is the Bufete Popular (legal aid clinic) in Santa Cruz de Quiche. MINUGUA has worked with a major university to help install a model project combining legal aid for indigenous persons with training for young lawyers. In January 1997, project administration was transferred to the host municipality. Similar bufetes were planned for other regions.
Nongovernmental Organizations
Institution-building projects with human rights NGOs developed far more slowly than the Mission would have liked. Aside from financing occasional workshops and conferences, the Mission spent the better part of a year awaiting the results of a project, financed with UNDP funds, to develop a directory of NGOs in all fields, including human rights. It took until November 1996 for the Joint Unit to finally approve a strategy for strengthening NGOs and to invite them to submit proposals. By March 1997, the Joint Unit had approved eighteen small, short-term projects (no greater than $50,000 for a maximum six months duration) with several of the major human rights organizations.
Mission difficulties in getting human rights NGO projects up and running stemmed from two main sources. First, the Mission was hamstrung by not having full control over resources dedicated to human rights NGO institution building. Mission reliance on UNDP funds made it more difficult to target human rights groups within the larger NGO-strengthening effort and to speed up UNDP's project planning and implementation process. Second, the Mission itself was at fault for not placing enough emphasis on NGOs, relegating the NGO program to junior staff.
Despite problems in developing institution-building projects, MINUGUA generally had very constructive relationships with NGOs. At the beginning of the Mission, NGOs were indispensable for educating MINUGUA about the Guatemalan context and the general human rights situation. They were also an important stimulus of
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human rights complaints, urging victims to approach the Mission with confidence. Though sometimes critical of the Mission for not taking a more aggressive stance vis-a-vis the Government, human rights NGOs have tended to convey criticisms in private and have stood by MINUGUA at difficult political moments, when its presence was questioned by conservative sectors. In the eyes of the NGOs, even if the Mission seemed at times slow moving and overly diplomatic, it was still a useful vehicle, its presence legitimating human rights work and providing the political space in which their own activities could be safely carried out.
Human Rights Education and Promotion
Trust fund contributions supported MINUGUA's public information and human rights education campaigns to explain the Mission's mandate and build a culture of respect for human rights. In this realm, MINUGUA's nationwide deployment made it possible to decentralize its education strategy, tailoring it to the country's ethnic and social diversity.
During the first year, field staff gave some 650 talks explaining the mandate of the Mission and more than 350 human rights training courses to a combined audience of some 60,000 persons, many of them NGO representatives and civilian officials. MINUGUA also developed publicity campaigns and radio programs in both Spanish and indigenous languages, to explain the role of the Mission and to provide basic information on the human rights and the indigenous agreements. After this initial period of massive education, which was critical for facilitating human rights complaints, the Mission shifted to a strategy aimed at multiplying its efforts through the training of promoters, who extended the work through the reach of their own organizations and networks. The counterpart organizations tended to be teachers and nongovernmental organizations, as well as the field offices of the Human Rights Counsel.
The growing demand for the Mission's decentralized education activities indicated that human rights issues and institutions and individuals working in human rights protection and defense were gaining legitimacy in Guatemala. But the education effort also faced serious obstacles: low literacy rates, a general lack of awareness about the peace process and the accords, and a deep-rooted suspicion of human rights within sectors of the population who had learned to equate it with the URNG or with the protection of criminals. The work was also constrained by the limited availability of indigenous-language translators.
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Institution-Building Strategy and Results
The Mission's initial institution-building strategy was to combine "quick impact" projects in several of the key institutions affecting human rights with other projects aimed at building support forand setting in motiona more comprehensive structural reform of the justice system. The Mission was clear from the outset that its projects were only strategic inputs and would not amount to a comprehensive overhaul of the justice system.
Nonetheless, the "quick impact" notion generated expectations that MINUGUA's projects would bear visible results in the short term. Indeed, by the end of its second year the Missionconscious of the need to respond to these expectationsbegan to report modest advances in several of the counterpart institutions. The Mission's sixth report, for example, referred to a greater interest in the investigation and trial of serious crimes; an improvement in the performance of some prosecutors and public defenders; progress in the use of professional standards to select judges and prosecutors; the establishment of an on-call system, improving the response time of prosecutors; an increase in the number of public defenders; and the passage of legislation on penal code reform, the selection and promotion for judicial careers, and domestic violence.
Although these changes were positive, they could hardly have been considered spectacular breakthroughs against impunity. In many cases, the Mission could only point to the successful carrying out of activities contemplated in the project, without judging the extent to which these activities were having a discernible impact on the overall behavior of the institutions. Even when behavioral changes were detected, these were often reported in cautionary language, suggesting that the Mission was not entirely sure whether positive trends would last. In some cases, as in a project to improve police investigations capacity, the Mission admitted its assistance was not having much of an impact. And, finally, structural problems in all the institutionssuch as lack of resources and staff, low wages and the inadequate technical background of personnel, the limited institutional presence in vast areas of the country, and the absence of objective standards and effective mechanisms for the evaluation and supervision of officialsdwarfed the positive impact of the technical assistance.
As it took stock of the institution-building experience, the Mission began to focus on the key obstacles to more rapid progress in order to develop a more refined strategy. One reason for the problems with institution building had to do with unrealistic expectations, particularly in comparison with verification activities. The two mission functions
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operate on different timetables: Whereas human rights verification efforts identify existing structural problems and generate relatively quick responses, reform projects can only be expected to bear definitive results over the medium and long term. A second reason was the weakness of the target institutionstheir ability to absorb international assistance was limited. The absorption capacity differs, moreover, from institution to institution, and between the capital and the interior of the country, where the state presence is scarce to nonexistent. A third finding suggested that the impact of technical assistance was limited by the Government's inability to formulate a clear diagnosis of the problems or a clear agenda for overcoming them. In Guatemala, this problem was linked to a lack of consensus at the political level on the need for a comprehensive overhaul and on models for reform. MINUGUA also concluded that the impact of its assistance was limited by resistance on the part of the national actors it was trying to strengthen.
With these lessons in hand, the Mission redefined its strategy, placing increasing emphasis on building a national capacity to sustain the reforms. Pursuant to this new approach, Mission assistance sought to increase the capacity of government agencies to assimilate international assistance, without creating dependency; shorten the time lapse between the offer of assistance and the response of the national actors; and form core groups of Guatemalan professionals within the institutions with the technical expertise and the commitment to carry on the long-term processes of structural reform.
The Relationship Between Verification and Institution Building
When the Parties decided to include institution building in MINUGUA's mandate, they were putting into practice one of the most important lessons learned from previous human rights missions: Verification efforts should lead to an increased national capacity to defend human rights. By placing both of these functions within the same institution, it was hoped the two would reinforce one another. Verification would help to identify problems, steer assistance toward needs, and give greater credibility to recommendations for reform. Institution building would give greater force to the verification, implicitly linking the availability of resources to the political will to accept the monitoring role. That was the ideal, but whether the two functions would actually work in harmony in MINUGUA was uncertain. Under the worst scenario, the marriage would weaken each partner. Verification would produce a conflictive relationship with the state, thereby poisoning the climate for cooperation, or institution building would produce an overly cozy relationship with the state, thus taking the edge off verification.
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Ensuring complementarity between these two areas of the mandate became a "mantra" within the Mission, where brainstorming often centered around how to make sure they worked in concert. In practice, this goal was difficult to achieve, and certainly more could have been done, but the two areas worked together in important ways. MINUGUA's verification reports, for example, oriented the national debate about human rights in ways that lent support to the institution-building area. By focusing on institutional weaknesses, the Mission showed how progress on human rights required, in addition to the political will to move forward, a comprehensive effort at strengthening institutions. Policy recommendations arising out of verification were also important for building consensus around an agenda for institutional reform. MINUGUA's reports were even taken up at the negotiating table, providing the Government and the URNG with a reference point for discussing justice and public security reforms found in the Agreement on Strengthening Civil Power and the Function of the Army in a Democratic Society.
In the field offices, verification was seen as synonymous with institution building. When visiting the Public Ministry and courts, for example, observers went beyond simply registering the state of progress in human rights cases to offer advice on how officials could better carry out their responsibilities. Human rights lawyers and police observers frequently gave technical training courses to local police and prosecutors. In everyday situations and in crises, MINUGUA field staff would often accompany police, judicial authorities, or representatives of the Human Rights Counsel, thereby strengthening their backbones and helping these authorities to form a relationship of greater confidence with the population. As institution-building work expanded, field offices named institution-building liaison officers to headquarters.
Institution building also strengthened verification in certain ways. Maintaining cooperation agreements with institutions required high-level political relationships that were often (but not always) useful when it came to verifying cases involving lower-ranking members of those institutions. By providing technical assistance, MINUGUA obtained a clearer view of life on the inside of the institutions, giving it greater insight into the problems than would have been possible through case verification alone. This translated into a greater ability to make policy recommendations that could be acted upon at an operational level. It allowed MINUGUA to go beyond general exhortations to make more practical suggestions for improving human rights.
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Contrary to early concerns, the institution-building perspective did not lead the Mission into overly diplomatic public reporting. On the contrary, MINUGUA was able to strike a balance in its reporting between recognizing progress and political will where it existed without downplaying problems for fear of ruffling the feathers of the institutional partners. Naturally, different opinions did develop, with verification staff tending to adopt a more fatalistic view than their colleagues in institution building. But the differences never seriously divided the Mission. Mechanisms were created to allow for debate. Verification and institution-building staff worked together, for example, in the drafting of Mission reports. A positive tension was created, with each side challenging the other's assumptions and conclusions.
Although, MINUGUA sought to insure complementarity between verification and institution building, it was also careful to avoid an overly tight linkage between the two. It resisted pressures from some human rights organizations to condition its assistance to the police and judicial branch on concrete advances in key human rights cases. MINUGUA understood the desire to use pressure tactics to force results, but it felt this would be ineffective and perhaps backfire in the Guatemalan context, causing resentment and increasing resistance to reform. The Mission also felt it important to respect the different timetables between verification and institution building. On the other hand, the Mission made adjustments to try to accommodate the NGO position. The accompaniment of prosecutors in the Public Ministry, for example, was modified so that the Mission's assistance focused on prosecuting human rights cases. MINUGUA also used its reports to highlight the lack of progress in key human rights cases, but it did not go to the extreme of explicitly linking assistance to resolutions of these cases.
HUMAN RIGHTS AND THE IMPERATIVES OF THE PEACE PROCESS
The relationship between human rights verification and the broader UN objectives in a peace process is one of the most delicate questions any mission will face. To enjoy the credibility needed to contribute to a peace process, human rights verification must be absolutely impartial and independent of the political negotiations. But the fact that human rights verification is part of the larger peace process is precisely what distinguishes it from other forms of international monitoring. This is also what makes it more likely that the Mission will be subject to political influences stemming from the larg-
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er imperatives of that processwhose successful conclusion offers perhaps the single greatest hope for human rights improvements in a war-torn state.
During the first period of the Mission, MINUGUA's verification was largely free of pressures stemming from the peace negotiations. But as the negotiations gained momentum during 1996, there was a feeling in human rights circles that the political needs of the negotiations and the more active role of the new Government dictated a lower profile and somewhat less independent role for MINUGUA vis-a-vis the peace talks. In two instances in particular, the Mission was subjected to pressures that constrained its freedom of movement.
The first instance involved an amnesty agreement between the Government and the URNG. Although most observers expected the peace accords to include some form of amnesty for human rights crimes committed during the war, both the URNG and Government had repeatedly promised they would not grant a general amnesty. Skeptical of these promises, human rights organizations formed a broad Alliance Against Impunity, and mounted an intense lobbying campaign against any form of amnesty for human rights crimes.
MINUGUA came under contradictory pressures. The human rights organizations asked the Mission to declare its opposition to any agreement that would shield human rights violators from prosecution, hoping that a pronouncement of this sort would increase the pressure against an amnesty. They argued that an amnesty would violate Article 3.1 of the Human Rights Agreement, in which the Government committed "not to sponsor the adoption of legislative or any other type of measures designed to prevent the prosecution and punishment of persons responsible for human rights violations."
Any agreement granting amnesty to human rights violators would, in fact, signify a de facto backsliding on the Human Rights Agreement. But no such agreement existed, making it difficult for MINUGUA to denounce it. The Mission had to be careful, moreover, not to be seen as trying to influence the negotiations. While these continued, MINUGUA refused to make any statements, explaining to the Alliance Against Impunity that it could not comment on issues on the negotiating table, and would not prejudge the agreement. At the same time, the Mission permitted several of its most experienced human rights lawyers to serve as advisors to the negotiations. Acting unofficially, the experts counseled the Parties on how they might structure an amnesty agreement so as not to violate international human rights standards.
On December 12, 1996, less than three weeks before the planned peace-signing ceremony, the parties signed an Agreement on the
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Bases for Legally Reincorporating the URNG into Society (El Acuerdo sobre los Bases para la Reincorporacion de la UNRG a la Legalidad). The accord called for Congress to pass a National Reconciliation Law, granting restricted amnesty for crimes committed by both sides during the armed conflict. Despite wording prohibiting the granting of amnesty for crimes that are "imprescriptible" in international law, the Agreement still left open the possibility that certain human rights violations would be amnestied. Vague language extending the amnesty to common crimes committed "in the armed conflict" and "with the motive" of preventing guerrilla actions left broad room for interpretation. Moreover, the agreement left untouched a series of previous amnesties, covering crimes committed before 1988, the period in which the vast majority of the violence took place. Even granting the benefit of the doubt to the Government and the URNG, much would rest on the actions of two bodiesthe Congress and the courtsnot known for their energetic action against impunity.
MINUGUA took a low-profile course of action, advising Congress on the drafting of the amnesty law and then, when the final product proved less than satisfactory, trying to make the best of an unfortunate situation. As human rights groups and the Human Rights Counsel moved to declare the law unconstitutional and a violation of the Human Rights Agreement, MINUGUA tried to use its legal credibility to assert a restrictive interpretation. In an eagerly awaited statement, the Mission declared the law sufficiently clear as to prohibit the granting of amnesty for serious human rights violations and underlined the responsibility of the courts to uphold this view as cases went to trial.
The second instance involved MINUGUA's work investigating human rights violations committed by the parties directly involved in the peace negotiations. The Mission was accused of covering up the killing of an UNRG member in an attempt to protect the peace negotiations. The "Mincho" case stemmed from the kidnapping-for-profit of an eighty-six year-old woman by an URNG urban cell, a crime exposed by the Arzu government on October 28, 1996, provoking national and international condemnation and causing a temporary halt to the negotiations. MINUGUA denounced the URNG action at the time, calling it a grave violation of the human rights accords. In early 1997, a stream of press reports revealed the possible torture and forced disappearance of one of the guerrillas (nicknamed Mincho) in a Government hostage-rescue operation. The Mission was accused of having kept the incident secret to prevent it from blocking a resumption of the peace negotiations.
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As criticism mounted, the Mission carried out a formal investigation of the case and, in May 1997, issued a report blaming the presidential guard for the death of the URNG member and faulting both the URNG and the Government for impeding the investigation of the case. With media and human rights groups applauding this step, charges that MINUGUA had participated in a cover-up subsided. Moreover, after reviewing the results of an internal investigation of the Mission's conduct, UN headquarters issued a statement expressing "absolute confidence" in MINUGUA and its Chief of Mission. The Mission was able to clear its reputation, at least momentarily, but it had lived through a painful incidentone that should caution future human rights missions about the consequences of permitting political calculations to overrule ethical and professional responsibilities.
In considering the contradictions that can arise between human rights missions and the political negotiations to which they are often a part, it seems the answer is not to deny that these linkages exist but to search for mechanisms that will protect the integrity of human rights verification work. It may even be possible to talk of constructing "firewalls" to keep political and field considerations separate.
As MINUGUA takes on its new role as a multidisciplinary mission, strict separations between human rights and the UN's larger role in the peace process have not been incorporated structurally. Similar to the experience of ONUSAL, the previous human rights verification section has been folded into a larger operation, which includes sections for the verification of each of the substantive peace accords. The former moderator of the peace negotiations now has two roles: Chief of Mission, overseeing the verification of all agreements, and Special Representative of the Secretary-General, the UN's senior political representative in the country. Human rights verification may retain a strongly independent role, but is open to discretionfar more so than if the human rights function were separated out structurally.
SUMMARY AND CONCLUSIONS
UN operations around the world are typically judged as either success stories or failures. Using that convention, MINUGUAand the broader peace effort in Guatemalahas generally been labeled one of the organization's recent successes. The Mission had a positive effect on the human rights situation; strengthened the national framework for human rights protection; strengthened the peace process; and put into practice lessons learned from its predecessors and thus contributed to improving UN human rights field operations.
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Impact on Human Rights
MINUGUA's field presence had a dissuasive effect on the security forces and the URNG; both exercised increasing restraint in military actions and the use of force. At the community level, MINUGUA helped to defuse conflicts, encourage dialogue, and bridge the ideological divide between adverse sectors of society. Perhaps most important, MINUGUA's presence helped to broaden the space for work in defense of human rights and the rights of indigenous peoples. Its reports received wide coverage and increased public focus on human rights and the problem of impunity.
By contributing in these ways, the Mission's presence helped to consolidate long-term trends toward democratization and to bring an end to the traditional pattern of human rights violations. However, major strides against impunity were not achieved, despite the Mission's efforts. Nor did the Mission's presence stem the emergence of a new human rights crisislinked to the decline of the oldinvolving spiral-ing crime and the failure of the State to provide public security.
Strengthening the National Capacity to Protect Human Rights
As a result of the opening provided by the Human Rights Agreement and the lessons learned from earlier experiences, MINUGUA was probably able to take institution building farther than any of the previous human rights missions. It did so through verification work and technical assistance projects that helped to define and legitimate an agenda for institutional reform. The presence of the Mission, moreover, provided a trusted reference point, catalyzing international donations for reform of the justice system.
The institution-building effort, though, has produced only embryonic changes. It has been stronger in some areas than others, and needs to continue efforts to decentralize and to support nongovernmental projects. The ultimate success of the institution-building effort (by MINUGUA and others) will depend on whether it succeeds in setting in motion a long-term, comprehensive reform of the justice system. This will only be possible with sustained interest from the international community and, most important, a firmer commitment from Guatemalans. The signing of the peace accords, and in particular the Agreement on Strengthening Civil Authority and the Function of the Army in a Democratic Society, provides a more favorable political environment for institution-building to move forward.
Strengthening Peace Negotiations
In assessing the impact on the negotiations, it is tempting to point to the signing of the peace accords and conclude mechanically that
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MINUGUA must have made a difference: All's well that ends well. But as noted above, all was not well. The peace process had serious weaknesses, and during much of MINUGUA's tenure it was not at all clear that either the Mission or the larger UN-backed peace effort would succeed. During this period, the presence of the Mission helped to hold things together. While the political negotiations ebbed and flowed, MINUGUA's steady presence over the two years leading to the peace accords was a calming factor. In that sense, MINUGUA helped to ripen the conditions for peace.
Through impartial verification and a more informal "good offices" role, the Mission's work helped to prevent the conflictive national context from spilling over into the negotiations and poisoning the climate for peace. In situations like the Xaman massacre, conflicts over issues that could have polarized society were maintained at tolerable levels. While peacemaking was still under way, MINUGUA's field presence was serving as both an instrument of "preventive diplomacy" (preventing existing disputes from escalating) and "peace building" (identifying and supporting structures that tend to strengthen peace and avoid a relapse into conflict).
Verification also played its expected role of encouraging compliance (at least partial) with the Human Rights Agreement, thus building confidence between the two sides. MINUGUA's presence during the 1995-96 elections, for example, provided a critical guarantee of space for political participation. Had a new left coalition been excluded violently, it is doubtful that the URNG would have felt secure enough to disarm and return to political life.
Taking Advantage of Lessons Learned
MINUGUA made a conscious effort to adopt the lessons learned from previous human rights missions, adapting these to the unique realities of Guatemala. The efforts of the Aspen Institute and others were indispensable in making those lessons readily available. The attention paid to past problems is reflected in the Human Rights Agreement itself, and in numerous aspects of MINUGUA's work. Thorough planning, for example, allowed for rapid deployment and a quick start to the verification of the peace agreements. Institution building was a major focus from the outset, and worked in concert with verification. Human rights reporting was generally strong and clear. UN volunteers were tapped to form the human rights observer corps. Civilians and uniformed personnel worked together in interdisciplinary verification teams, as opposed to uncoordinated or competing units. Relations with NGOs were generally constructive and frank. UN agencies and a human rights mission worked in closer partnership than ever before.
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One of key lessons learned from previous missions is the importance of guaranteeing strict separation between human rights verification and peace negotiations. MINUGUA had a mixed experience in this regard. When the Guatemalan peace talks emerged from the doldrums during the Mission's second year, political pressures stemming from the negotiating process spilled over into its verification work. A Mission with a reputation for independence suddenly found itself in a straitjacket, and ended up having its integrity called into question. At a minimum, the experience points to a need for more discussion and experimentation with mechanisms to ensure that human rights are honored while keeping the peace.
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International Human Rights Operations in Bosnia and Herzegovina
Michael O'Flaherty
INTRODUCTION
Multiple international agencies and operations are engaged in the promotion and protection of human rights in Bosnia and Herzegovina. This paper describes and assesses the complex configuration of human rights work there; identifies reasons for the manner of its development; locates it in the context of the human rights provisions of the peace agreement; and evaluates the extent to which joint and several implementation of mandates has served to enhance the protection of human rights. The paper also draws attention to the considerable potential of the coordination mechanisms and the need for these mechanisms to be developed further.1
Though the United Nations is present in Bosnia and Herzegovina, it is not the lead international organization with regard to human rights. Its activities are not, therefore, the central concern of this paper. The UN does, however, play an important role, and its activities are identified and assessed within the matrix of international initiatives.
POLITICAL CONTEXT AND MANDATE
The human rights operations discussed in this paper were established following the November 1995 US-brokered effort to end the conflict in Bosnia and Herzegovina.
The peace settlement, the General Framework Agreement for Peace in Bosnia and Herzegovina (GFA) initialed in Dayton, Ohio, was signed in Paris on December 14,1995. It provided for the transfer of certain territories by the belligerent parties (the Bosniaks
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[Bosnians of Muslim Origin], Bosnian Croats, and Bosnian Serbs), compliance with detailed provisions for withdrawal and partial demobilization of forces, complete withdrawal of foreign forces, and release of prisoners. The GFA stipulated that Bosnia and Herzegovina was to remain a unitary state but was to be divided into two Entities, the Federation of Bosnia and Herzegovina (established in 1994), with 51 percent of the territory, and Republika Srpska with 49 percent. They were each given control of armies, police forces, and the collection of tax revenue, thus robbing the unitary state of all but rump authority. National and Entity-based elections were to take place within a given time frame.
The agreement insists on the right of refugees and displaced persons to return to their place of origin. However, this provision sits oddly with the Entity concept, whereby large numbers of displaced persons are expected to return to areas under control of those who had perpetrated "ethnic cleansing" against them. The GFA's frequent reference to and insistence on democratic principles is also at odds with provisions for "ethnicization" of public life in Bosnia and Herzegovina such as the reservation of certain central posts for persons of designated ethnic origin. The GFA established a Commission for Displaced Persons and Refugees to consider property claims and to determine compensation, but did not identify the source of the funds for compensation. The United Nations High Commissioner for Refugees (UNHCR) was given the lead role for the repatriation of refugees and displaced persons, and it maintains a team of protection officers spread thinly throughout the region.
The GFA is suffused with direct references to human rights: The State and the Entities agreed to "ensure the highest level of internationally recognized human rights and fundamental freedoms"; to incorporate the European Convention on Human Rights and its protocols into domestic law; and to secure, without discrimination, the rights contained in fifteen other international instruments. Within the Federation of Bosnia and Herzegovina, the corpus of substantive human rights law is complicated by the continuing application of the provision of the Federation Constitution giving direct effect to fifteen international instruments. These multiple sources of human rights law present serious problems of interpretation and open the door to endless disputes over matters such as the identity and terms of applicable law.2
The GFA created a Human Rights Commission comprising an Ombudsperson and a Human Rights Chamber, which investigate violations of the European Convention on Human Rights and discrimination with regard to the enjoyment of rights. The Federation Constitution had also established an Ombudsmen office to investi-
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gate allegations of human rights abuses in the Federation of Bosnia and Herzegovina. The GFA did not, however, establish an analogous Entity-based ombudsmen mechanism for Republika Srpska.
International supervision of the implementation of GFA is primarily entrusted to five different bodies. IFOR was the multinational military implementation force operating under NATO command. The 53,000-person IFOR contingent was replaced in late 1996 by a 31,500-person Stabilization Force (SFOR) with a mandate to operate until June 1998. IFOR/SFOR was established primarily to supervise implementation of military aspects of GFA. By its mandate it may also help secure conditions for the implementation of the other aspects of the peace agreement, including free and fair elections; assist in the activities of humanitarian missions; prevent interference with freedom of movement; and respond "appropriately" to violence to life or person. IFOR/SFOR has not played a prominent role in the promotion or protection of human rights. Its activities have been limited to actions such as providing security to international police monitoring teams and the provision of legal experts to address needs of the justice system.
The International Police Task Force (IPTF) monitors and helps to restructure and train law enforcement agencies. It is also mandated to monitor judicial bodies. The IPTF is required to provide any credible information in its possession on human rights violations to the Human Rights Commission "or other appropriate organizations" and to investigate human rights violations by the police. As of April 1997, IPTF had an authorized strength of 1,900 officers deployed in fifty-four locations. IPTF is supported in its substantive work by forty-nine civil affairs officers from the UN mission, UNMIBH.
OSCE was given the task of organizing internationally supervised elections for various levels of government throughout the region. National elections were conducted in September 1996. Despite an election campaign entirely compromised by human rights abuses and violations of international electoral standards, OSCE permitted all but the municipal elections to take place. (The municipal elections of September 1997 occurred too late for consideration in this paper.)
Finally, the GFA designated a High Representative to facilitate the efforts of the several international organizations assigned tasks by the Agreement and to mobilize and, as appropriate, coordinate the activities of the organizations and agencies involved in the civilian aspects of the peace settlement. The coordinating role of the High Representative regarding international organizations is stated in very deferential terms: "The High Representative shall respect [the organizations'] autonomy within their spheres of operation while as necessary giving general guidance to them about the impact of their activities on the
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implementation of the peace settlement." The High Representative is also mandated to facilitate the resolution of disputes, participate in donor meetings, report to the Contact Group of States, the UN, and "other interested governments, parties, and organisations." The High Representative has no authority over IFOR.
Given the extent of his responsibilities and the range of lacunae in the peace accords, the High Representative established an excessively modest presence in Bosnia and Herzegovina. Throughout 1996, he lacked sufficient technically qualified staff and failed to develop an adequate presence outside Sarajevo.
The GFA gave civilian human rights promotion and protection operations a breadth of support unprecedented in peace agreements. The agreement invites participation of local and international NGOs and gives open-ended permission for conducting missions, opening offices, and assigning observers to them as well as to the UN Commission on Human Rights, OSCE, OHCHR, and the multinational human rights treaty bodies.
The GFA also affords full and unrestricted access to the territory for UNHCR, ICRC, UNDP, and "their international, domestic and non-governmental organisations relevant to refugees and displaced persons," and to discharge "protection functions and the monitoring of basic human rights and humanitarian conditions."
However, unlike earlier proposed peace settlements, and in spite of the existence of applicable models in peace agreements adopted elsewhere, the peace accords do not establish one principal international civilian human rights operation. As a result, a number of the missions have taken on discrete human rights responsibilities. The Office for Security and Cooperation in Europe (OSCE) is the primary operation, carrying out broad monitoring, investigation, and intervention activities and a democratization/civil society development program. These activities are somewhat artificially and unhelpfully conducted in two entirely distinct programs respectively termed "human rights" and "democratization." As of September 1997, OSCE had deployed thirty human rights and thirty-four democratization officers in local, regional, and headquarters postings, far too few personnel for the ambitious program developed by the organization. The UN High Commissioner for Human Rights/Centre for Human Rights (UNHCHR/CHR) has had a small field presence (seven international staff in 1996) in Bosnia and Herzegovina since early 1994. Its activities have included supporting the mandates of the UN Commission on Human Rights Special Rapporteur and the UN Expert in charge of the Special Process on Missing Persons in the former Yugoslavia (whose mandate was terminated in April 1997); pro-
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viding expert advisors to the Office of the High Representative; and training international police and civilian human rights monitors.
The European Community Monitoring Mission (ECMM) has been deployed in Bosnia and Herzegovina since 1992 on the basis of memoranda of understanding negotiated with the Government. It has a wide-ranging monitoring mandate on behalf of a number of western European states and addresses issues of human rights and civil society. ECMM has deployed some eighty monitors and works closely with OSCE.
The Council of Europe, even though lacking a field capability, has an office in Sarajevo. A three-person team coordinates tasks assigned to the Council in the GFA, such as appointment of certain office holders and implementation of a program of technical cooperation to prepare for eventual membership in the Council and ratification of the European Convention on Human Rights. Activities include human rights training, legislative review, and the strengthening of judicial and political institutions. There are myriad international human rights institution building activities being conducted at any given time by USAID, SID A, The Open Society Fund, the American Bar Association, the National Democratic Institute, International IDEA, International Human Rights Law Group, USIS, UNDP, UNICEF, UNESCO, ICVA, and the UN Crime Prevention Branch. Human rights monitoring activities are conducted by organizations such as International Crisis Group, Balkan War Report European Action Council for Peace in the Balkans, Open Media Research Institute, International Helsinki Committee, and Human Rights Watch.
COORDINATING HUMAN RIGHTS OPERATIONS
The multiplicity of organizations addressing human rights has placed a heavy burden on the High Representative to introduce and sustain effective coordination mechanisms. The office has developed three principal mechanisms for that task: the Human Rights Coordination Centre, the Human Rights Task Force, and the meetings of the Principal Officers of the Main International Implementing Partners (the Principals).
The Human Rights Coordination Centre (HRCC), located in the office of the High Representative in Sarajevo, is staffed by a small team as well as part-time liaison officers made available by OSCE, IPTF, UN Civil Affairs, and (ECMM). (UNHCHR/CHR promised to place five human rights experts in the office on a full-time basis, but this figure was never reached.) HRCC attempts to maintain effective information
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exchange and policy-development mechanisms among the participating organizations in the areas of human rights monitoring, intervention, and institution building. Democratization activities also come within its purview, and both of the relevant OSCE branches participate in its activities. It attempts to involve relevant organizations in its activities on an issue-by-issue basis. HRCC has had difficulty finding ways to include many of the groups, including NGOs active in the human rights sector. The NGO Council, a consortium of NGOs, was invited to nominate a representative to join the HRCC Steering Board. The Council nominated OXFAM in May 1997, but as of early August 1997, it had still not taken its place at the HRCC Steering Board table. HRCC exists only at headquarters in Sarajevo and is not adequately supported by regional or local coordination structures.
The Human Rights Task Force is chaired by the High Representative or his Senior Deputy. It comprises the principal officers of the HRCC participating organizations, and senior representatives of significant human rights organizations or institutions. Members of this group include the UN Special Rapporteur, the various Ombudspersons, and a representative of the Human Rights Chamber. Local and international NGOs are not represented. The Task Force attempts to coordinate the development of broad constituencies to support a common human rights policy among all the relevant agencies and organizations.
HRCC and the Task Force increasingly channel major urgent human rights concerns to the regular meetings of the Principals. This is done when top-level intervention is required, such as a joint demarche, joint senior missions, intervention with the heads of external organizations, or for the development of major interagency programs (for example, securing freedom of movement for voters in the elections of 1996). The Principals may and do, of course, also address human rights issues of their own volition.
A number of ad hoc coordination bodies have also been established to address particular human rights problems, such as freedom of movement and tracing of missing persons. These groups develop with little or no reference to existing initiatives and tend not to be driven by the human rights operations.
PLANNING, RECRUITMENT, TRAINING, AND DOCTRINE.
The OSCE had never before mounted a large human rights operation and did not formally draw on the experience derived from similar previous operations of other organizations. The staff is all sec-
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onded by governments. Initial recruitment criteria focused on senior experience as lawyers or judges rather than on field skillsonly a minority of the staff has either formal or field-acquired human rights skills. In-service training has been inadequate, and efforts of UNHCHR/CHR to provide training in 1996 were largely subverted by a poorly developed OSCE training policy. The OSCE operation has grown more receptive to issues of training and began to address deficiencies in 1997. Throughout 1996, the OSCE mandate to supervise elections hurt its human rights activities. An interminable secondment of human rights officers to tasks related to the preparation and implementation of elections was followed by a series of election-related decisions that paid inadequate regard to human rights; ultimately, OSCE recommended that the elections proceed despite evidence of endemic abuses of the campaign process.
IPTF, as a United Nations CIVPOL operation, drew on the considerable experience of DPKO, benefiting from the services of well-qualified legal, UN civil affairs, and senior police officers who had served in other peacekeeping operations. IPTF requested deployment of 120 officers with advanced human rights skills. Organizational changes, including the appointment of senior police and civilian UNMIBH, personnel with human rights responsibility, have enhanced the profile of human rights in IPTF activities.
During the war, UNHCHR/CHR had an important role in human rights monitoring on behalf of the Special Rapporteur. With the deployment of major monitoring operations, this function disappeared. The GFA afforded UNHCHR/CHR opportunities to provide technical assistance for IPTF training and the work of the HRCC. The training program was efficiently implemented in 1996 but, as of September 1997, a follow-up program was still awaited. The scale of support given to HRCC never met anticipated levels. Negotiations continue for extension of the technical cooperation activities of the Centre. The activities of the UNHCHR/CHR field operation were subject to independent evaluation in early 1997, the findings of which have not been made public.
A number of personnel servicing the High Representative's coordination mechanism are experienced human rights professionals. Their numbers are not, however, commensurate with the scale of the tasks to be accomplished. An issue that has never been addressed is that of reflecting on or providing guidance regarding field operation planning, deployment, staff recruitment, and training. HRCC has also had little input into decisions on who is deployed to liaise with it. HRCC has, however, facilitated guest-participation of human rights officers in training activities undertaken by HRCC member organizations or elsewhere.
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Security for the mission's civilian personnel has not been a major problem in the post-GFA period, though there have been isolated incidents of intimidation, and the local staff of international organizations is occasionally subject to harassment. Human rights operations have access to security guidance from SFOR and have acted on SFOR advice to temporarily withdraw from Republika Srpska on at least two occasions in 1996. No organization has systematically implemented obligatory training courses for civilian personnel with regard to the very serious problem of land mines.
The IPTF is an unarmed force and relies heavily on the security provided by SFOR in carrying out hazardous tasks such as night patrols in tense locations, searches for long-barreled weapons and, as demonstrated in Republika Srpska in August 1997, raids on police stations. It has expressed concern that the 1997 reduction in the size of the military force had a negative impact on its ability to function and that IPTF activities will become untenable if and when a military force withdraws.
INVESTIGATION, INTERVENTION, AND EFFECTIVENESS
The large number of monitoring operations create a high likelihood that human rights incidents will be reported and monitored by more than one organization. Indeed, on numerous occasions in Bosnia and Herzegovina, multiple operations were simultaneously monitoring the same incident, including times (such as during the 1996 elections) when the monitors were so thick on the ground as to get in each other's way. Multiple monitoring can result in widely varying, conflicting, and confusing accounts of violations and generate multiple and mutually compromising interventions, especially at the local level.
The High Representative's coordination mechanisms continue to address the issue of multiple reporting. Where the information remains confused or inadequate, it asks appropriate organizations to investigate further, and on occasion it has deployed experienced investigators to report on the incident at issue and to advise on improving local monitoring methods.
Nevertheless, at the end of 1996, human rights investigations were still not consistently acceptable, and the High Representative established a specialized monitoring and response unit to address the
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ongoing problems. The team's capacity had its first test in February 1997, when it joined with IPTF in a major investigation of reports of grave police abuses in Mostar. The cooperative and thorough nature of that investigation gave the new unit credibility and authority. The investigation findings were endorsed by the UN Security Council on March 11,1997.
Improvements in human rights monitoring and intervention have been among the principal achievements of HRCC. It has not, however, addressed the issue of wasteful multiple primary reporting and, while it has ensured some coordination of high-level interventions, it has not had similar success at the local level (not least because of the lack of HRCC-linked structures outside Sarajevo). HRCC has also not yet undertaken a systematic assessment of the effectiveness of interventions and the response to recommendations made to HRCC organizations.
REFUGEES AND INTERNALLY DISPLACED PERSONS
The war in Bosnia and Herzegovina resulted in the displacement of some 2,100,000 persons.3 Each of the Entities accommodates large internally displaced populations. Republika Srpska also houses Serbs displaced from Croatia. Over 250,000 people have now returned to areas where they are part of the local ethnic majority, but authorities in each of the Entities and Croatia have obstructed all but token returns to areas controlled by an ethnic group other than that of the would-be returnees. Voluntary returns are obstructed by such actions as police harassment, limitations on freedom of movement, and the application of discriminatory legislation.
The scale of human rights abuses suffered by the internally displaced must be addressed as a concern of both monitoring and institutional reform. The organizations must recognize that their work in building a just, democratic society will be doomed if that society is constructed on the basis of distorted demographics brought about by the war and the policies of "ethnic cleansing." Promotion of voluntary return is therefore an essential element on the human rights agenda for Bosnia and Herzegovina. The various organizations remain more or less true to this ideal. A return-related institution-building activity on which there has been effective HRCC-based coordination has been the campaign for the reform of the laws regulating ownership and possession of abandoned property. Another return-related project is the Reconstruction and Return Task Force under the auspices of UNHCR, which links agencies dealing with both issues. It
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has an important role to play in facilitating common positions by such disparate organizations as UNHCR, the World Bank, and the European Commission.
At the highest level of policy development, UNHCR occasionally convenes a humanitarian affairs working group of the Peace Implementation Council, with membership from the main peace implementing agencies. On an operational level, the human rights community maintains close contact with UNHCR and participates in HRCC activity. However, reductions in UNHCR staffing, combined with the narrow way in which it has defined its human rights mandate, has limited its capacity to address human rights.
The Office of the High Representative has given its full support to a grass roots initiative of displaced persons, "The Coalition for Return," and has encouraged other international organizations to support it as a model of "citizen-empowerment" to counteract the obstructive policies of local authorities.
INTERNAL AND PUBLIC REPORTING
The early days of the multiple operations were marred by serious problems of internal reporting.4 Staff at OSCE headquarters, for instance, frequently complained that field offices were forwarding neither adequate nor appropriately formatted information. IPTF suffered similar problems with regard to human rights-sensitive information. UNHCHR/CHR had no effective mechanism for regular periodic transmittal of pertinent information. Each of the organizations improved considerably during 1996. OSCE implemented an efficient system of weekly reports, IPTF made serious efforts to develop a human rights reporting chain, and UNHCHR/CHR implemented and sustained monthly activity reports.
HRCC functions as an effective channel for the sharing of internal reports among the participating agencies. Based on these reports, it has produced a daily human rights report in English and local languages that is distributed worldwide to diplomats, journalists, and NGOs (and is available on e-mail). The report, though open to criticism regarding its journalistic approach, draws attention to major daily events and, over time, clearly demonstrates patterns of human rights abuses. OSCE is developing its public reporting and now has a monthly democratization newsletter, also available by e-mail. Among the actors who issue regular public UN reports on the human rights situation are the Special Rapporteur, the High Representative, and the Special Representative of the UN Secretary-General.
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The development of public reporting has been a significant success of the coordinated missions in Bosnia and Herzegovina. Work still remains to be done in promoting popular access to the material by speedily translating the information into local languages and promoting awareness of and facilitating information on access to the UN reports.
THE RELATIONSHIP BETWEEN MONITORING AND INSTITUTION BUILDING
Both OSCE and the Office of the High Representative address monitoring and institution building in a disjunctive way. OSCE deals with monitoring in its human rights branch and institution building primarily in its democratization branch. The Office of the, High Representative undertakes significant institution-building activity (such as law reform, support for state institutions, civil society-related projects) without reference to the office of its human rights advisor. The human rights teams are not included in the range of institution-building activities, impeding the development of a proper synergy between monitoring and institution building.
During 1996, an enormous number of human rights/civil society institution-building activities began in Bosnia and Herzegovina, implemented by the various agencies participating in HRCC as well as a host of other bodies. Early efforts were characterized by a considerable overlapping of activity, wasted resources, and badly designed projects. Serious institution-building needs, such as the promotion of NGO activity outside major population centers, were also ignored. In response to the need for coordination, various steps were taken, including an IPTF initiative to coordinate rule-of-law projects and an effort by the American Bar Association to facilitate information exchange on law reform. HRCC, however, was slow to become involved, primarily because it was preoccupied with human rights monitoring issues. It was also not well attuned to issues of institution building, as its membership failed to include many of the bodies active in the field.
Late in 1996, HRCC made its first serious efforts to coordinate institution-building and monitoring activities. The members of the multiple mechanisms met together for the first time to clarify mandates and to offer guidance on the best ways to obtain redress for human rights abuses. Rather than using political channels, there were domestic institutions to which cases of abuse could be referred, including the Human Rights Chamber and the Federation
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Ombudsmen. The meetings led to the publication of a referral guide widely distributed by OSCE.5 These efforts were successful both in improving the practice of human rights monitors and in strengthening indigenous human rights institutions. HRCC's ability to link monitoring to institution building was enhanced in 1997 with the establishment of specialized units dealing with the promotion of the rule of law, human rights education, and support for NGOs. International organizations focusing on institution-building activities, including the Council of Europe and the European Union, were invited to sit on its Steering Board. The NGO Council, as noted, has not taken advantage of the invitation to participate in the Board's activities.
The new structures have, in small measure, enhanced the role of institution building in relation to monitoring. The latter, however, continues to be the principal focus of the Human Rights Coordination Centre activities. This may be partly due to the fact that its Chief, who also serves as the High Representative's Human Rights Advisor, must address an endless array of human rights emergencies. It is also relevant that the staff's principal experience is in monitoring and emergency intervention.
In addressing institution building, HRCC must continually struggle to define the parameters of its concerns: Where does a human rights competency begin and end? In what circumstances is support for civil society or democratization not a matter for the human rights experts? The reality is that pragmatism, if nothing else, will dictate in some cases that some institution-building activities are best left outside the human rights coordinating operation. (It is hard to .envisage a useful role for HRCC in law reform for the development of commercial law or criminal procedures for narcotics trafficking.) Nevertheless, activities and organizations beyond the reach of the coordinating body must be made aware of and respect the fundamental imperatives of human rights. Encouraging recognition of these imperatives is, perhaps, the most useful guideline for the activities of the international financial institutions in Bosnia and Herzegovina.
INSTITUTION BUILDING
Police and Prisons
Bosnia and Herzegovina has a multitude of overstaffed police forces, most of which primarily serve the interests of one or another ethnic group. The prewar communist force had been well trained, but
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without attention being paid to community policing skills. The vast majority of human rights abuses are perpetrated by the police in a context of effective impunity. Police reform is, accordingly, a matter of high priority.
IPTF has a mandate to train the police and promote organizational reform. The reform has included downsizing, establishing a system whereby incompetent or miscreant officers may be removed, and developing curricula for the police academies. Only in late summer of 1997 did elements of the police forces in Republika Srpska agree to participate. The change of heart occurred in the context of an international determination to insist that Republika Srpska comply with the terms of the GFA. International funding is available to assist local police to upgrade systems and equipment.
Except for ad hoc and uncoordinated initiatives, such as regionally organized OSCE training for police chiefs in February 1997, the various civilian human rights operations are not closely involved in the police training programs. UNHCHR/CHR has persistently failed to exploit opportunities to participate in the process of developing and implementing the human rights components of police training modules.
Bosnia and Herzegovina has some fourteen long-term detention facilities for civilian prisoners. The principal problem is the excessive length of pretrial detention. Though reform of prison conditions is obviously required, it does not at present warrant priority attention from the international community. The UN Crime Prevention and Criminal Justice Division is now implementing a training program for prison personnel.
Judicial Reform
The war left the country with appalling problems in the administration of justice. There were three court systems (one in Republika Srpska and two in the Federation) with no interaction among them; many of the best judges, court officials, and law students had left the country or were otherwise occupied; adoption of new constitutions both before and in the context of the GFA, together with the patchwork development of law and wartime regulations, created legal chaos; and many court buildings were either destroyed or severely damaged. Miscarriages of justice occur frequently, particularly where defendants are indigent or belong to ethnic-minority groups.
The international community's judicial monitoring activities are well coordinated. The UNHCHR/CHR has developed an effective system of interagency cooperation to ensure that the judicial processes essential to human rights are observed and reported in a profes-
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sional manner and that requirements for institutional change are addressed. A number of local and international NGOs, such as the Helsinki Committee on Human Rights and the International Human Rights Law Group, participate in these activities. Monitoring activities were expanded in 1997 to review the process of judicial appointments and, in May 1997, HRCC organizations jointly issued a strong denunciation of the process in parts of the Federation. HRCC also continues to attempt to open inter-Entity channels on the collection of evidence, receipt of testimony, and mutual recognition of the qualifications of advocates, with little success to date.
Other institution-building requirements are being addressed to a greater or less extent by a wide range of international organizations and NGOs. Activities include assisting law reform; training lawyers and judges; developing a working manual for judges and a reference manual on international standards for the independence of the legal profession; enhancing the capacity of the judges' and lawyers' associations and the university law schools; and developing free legal aid programs.
The principal problem with these efforts is a lack of coordination. For example, a number of organizations, including IPTF, SFOR, and the UN Crime Prevention and Criminal Justice Division, conducted identical surveys of the justice system and are unwilling to facilitate collaborative activities in this area. IPTF, for example, persists in assuming the coordinating role regarding every aspect of reform of the criminal justice system without organizational reference to HRCC. Also to be regretted is the manner in which a number of programs of free legal aid for indigent defendants are being developed without adequate mutual reference and outside HRCC structures. Furthermore, inadequate attention is paid to the need for projects to be sustainable in the long term.
The poor planning of projects sometimes results in unsuitable methods and inadequate content. This was illustrated by the failure of a joint OSCE/Council of Europe scheme in 1996 to bring together at one seminar all the judges of the country. No Republika Srpska judges made the journey to the venue in the Federation, and the judges who did attend were presented with a program of uneven quality. A second and more successful attempt in 1997 demonstrated that the organizers had learned from the first experience. In general, projects would benefit from systematic evaluation and impact assessment.
Official Human Rights Institutions
A plethora of official human rights mechanisms was created pursuant to the various peace initiatives: the Human Rights Chamber, the Ombudsperson for Bosnia and Herzegovina, the Federation
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Ombudsmen, the Commission for Displaced Persons and Refugees (Real Property Commission), the Constitution Court of Bosnia and Herzegovina, and the still to be established Human Rights Court of the Federation. The Election Appeals Subcommission and the local courts also have competence to address human rights issues.
The international human rights operations support the official human rights institutions by nominating some of their membership, providing financial support, and promoting implementation of their decisions. The institutions have also been integrated, to a modest extent, in HRCC and other related activities. Additional efforts are required to promote implementation of their decisions through such actions as joint demarches by the Principals. Thought also needs to be given to the means of funding for the institutions so that they are not overly dependent on international contributions and thus incapacitated when the international organizations depart.
Enthusiastic support for the institutions should be sufficiently nuanced in order to encourage and support efforts of the regular courts to address human rights abuses.
The constructive appraisal of the work of the official institutions is another task for the international organizations. The various bodies are developing with little or no public scrutiny or analysis although they require the benefit of hard criticism (even if delivered in a context of great confidentiality). Attention is not focused on the manner in which the work practices of the Ombudsperson for Bosnia and Herzegovina may be overly formalistic and ill suited to the postwar realities of the country.6 And the Election Appeals Subcommission seems to have escaped all criticism despite its neglect of due process at the time of the 1996 elections.7
Nongovernmental Organizations8
Prewar Bosnia and Herzegovina did not have a community of local human rights NGOs. A few developed during the war, notably the Human Rights Centre in Tuzla and the human rights department of the Tuzla Citizens' Forum, both of which have undertaken extensive human rights training and promotional activities. In Sarajevo a Law Centre was developed to address the building of human rights institutions with ongoing support from the Open Society Fund. There is a Helsinki Committee for Human Rights in Sarajevo and Bijeljina (Republika Srpska), which focuses on monitoring and human rights education. Many other voluntary groups now address human rights monitoring or institution-building issues as part of their range of activities. The Coalition for Return also sees its campaign in human rights terms.
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The local human rights NGOs are increasingly professional in their work, led by highly competent Bosnian nationals. The principal groups have benefited from international linkages with such bodies as the International Helsinki Committee, Helsinki Citizen's Assembly, and Federation Internationale pour les Droits de I'Homme. The NGOs are, however, unevenly distributed throughout the area, with a preponderance located in Sarajevo and Tuzla. Almost no NGOs address human rights issues in the Croat-controlled parts of the Federation and in many areas in Republika Srpska. The NGO community relies heavily on international financial assistance. Large sums are being distributed by the aid agencies of a number of nations, often in a manner which fails to promote organizational sustainability-
A vast number of international NGOs are active in Bosnia and Herzegovina, many addressing issues of civil society, including human rights. Although the major international NGOs monitoring human rights have at most a modest presence in the country, they do wield influence. Amnesty International and Human Rights Watch have attracted attention for their interventions and maintain international media focus on the failure to arrest indicted war criminals. The Lawyers' Committee for Human Rights and the Open Society Institute have issued commentaries on the laws of property and of citizenship, and these commentaries have influenced the work of the Office of the High Representative and others promoting law reform. The International Crisis Group has had remarkable success (through public interventions and discreet lobbying) in raising media attention and influencing policy on a number of human rights and other issues.
The international human rights operations have shown some sensitivity to the need to work with and support the development of local NGOs. The OSCE and the High Representative's Office, in particular, have NGO support programs that provide technical assistance, advice on how to approach the donor community, and practical help in such matters as safely moving people across the inter-Entity boundary line to attend gatherings. The NGOs are present in the coordination groups for law reform and the promotion of the rule of law. Most HRCC information is now distributed to local NGOs. Information provided by the local groups is also channeled through HRCC and is featured regularly in the daily Human Rights Report. NGOs are often the primary source for reports of the Special Rapporteur and international organizations.
Some of the most important initiatives to assist the local NGO community, however, are developed outside HRCC structures by international NGOs, as in the opening, in May 1997, of the NGO
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Information and Support Center in Bosnia and Herzegovina. Another example is the Bosnian NGO Law, Education and Advocacy Project being developed by an NGO/IO Consortium.
But there is still much that the international human rights operations can do to encourage the development of NGOs in neglected regions and to search for ways to integrate local and international NGOs with the work of the HRCC, even in a context of lack of enthusiasm from NGOs themselves. Despite the important initiatives for information-sharing facilities in the NGO community, there is still insufficient coordination and cooperation among local and international NGOs, resulting in waste and misdirection of resources. It is also important that the donor community itself work in a more collaborative manner to promote consistent and responsible policies among the many international and bilateral agencies with funds to spend in Bosnia and Herzegovina. HRCC has attempted to address this issue, though in a somewhat half-hearted manner.
A further and essential challenge for the international human rights operations is to involve local groups in the development and implementation of institution-building programs. For reasons that include short-term planning and the desire for immediate results, far too many of these programs are carried out directly by the international groups in a manner that suggests they will collapse as soon as the internationals leave. The matter gives current cause for concern regarding the development of legal aid projects, and the many inter-Entity dialogue initiatives.
The establishment of the Democracy Foundation of Bosnia and Herzegovina was an encouraging recent development. This body, run by a widely representative board of Bosnian nationals, intends to begin the process of "repatriating" the civil society projects currently implemented by international organizations. The international group promoting the project, the International Institute for Democracy and Electoral Assistance, has developed a model methodology by undertaking extensive consultation and resolving to withdraw as soon as possible, while leaving in place a mechanism for nondirective international support.
Human Rights Education
Three organizations with well-established roles in human rights education, UNESCO, UNICEF, and the Council of Europe, are present in Bosnia and Herzegovina. Other international organizations with a training mandate include IPTF with regard to the local police forces. Major human rights operations, principally OSCE, have also shown a concern to address the education issue. Little has yet been achieved.
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The lack of progress is not surprising. The war totally disrupted the various target groups, such as children in the school system and professional associations. Schools have to be rebuilt, teachers returned, and basic textbooks printed and distributed. Many professional bodies have to reconstitute or establish themselves, a task greatly complicated by the creation of the two Entities, thereby requiring the parallel implementation of two programs. It took some time for the international community to acknowledge the full extent and import of the division and to realize that a common strategy for Bosnia and Herzegovina was often futile. Much time was wasted and planning was discarded in 1996 because of a failure to grasp this reality.
The needs of the education sector are vast and go well beyond the scope of activities of the human rights component of any international operation. Thus, for instance, at least four departments of the Office of the High Representative have a legitimate interest in education issues. In such a context, it is difficult for the human rights components to argue that their concerns have a priority. It is no less difficult to argue against those who would and do impede development of a human rights curriculum, contending that it must be developed over a number of years as part of an integrated school program.
With regard to the human rights education of children, UNICEF is in a position to lead the development and implementation of a HRCC-centered plan that addresses the entire range of issues and actors and has the rights of the child as its cornerstone. Experience in Bosnia has not demonstrated that UNICEF is likely to take on the role. During 1996 it developed a country program and action plan with unseemly haste and minimal reference to political circumstances.9 Since then it appears to have undertaken little meaningful consultation with the main human rights organizations or their coordination mechanisms.
There have been some educational achievements: the activities of IPTF and the UN Crime Prevention and Criminal Justice Division with the police; the Council of Europe and OSCE training of judges, lawyers, and politicians; and UNESCO's developing courses in civic education for children. OSCE, relying extensively on Bosnian national staff, also made efforts to undertake voter education in preparation for the 1996 elections. Despite endless technical problems, this campaign seems to have had some success in reaching its target groups.
The HRCC organizations (together with a number of local and international nongovernmental groups) successfully established a University level Centre for Human Rights. The Centre opened in December 1996 and is being encouraged to become a truly local insti-
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tution with a capacity for research, training, and dissemination of materials. It has already organized a number of training activities for Sarajevo university students and has begun joint research projects with European human rights institutes.
The number of NGO-generated human rights education projects is increasing. These are typically in such sectors as "citizen empowerment" and human rights skills for NGO activists. Implementation of these programs would benefit from enhanced coordination and information exchange among NGOs and between them and the international human rights operations. HRCC has a role to play here and has begun compiling an ongoing survey of all such activities.
The Human Rights Treaty Bodies
The GFA invites the intervention of the various supervisory bodies of human rights treaties, including those under each of the six principal UN human rights instruments.10 The invitation is unprecedented and presents the treaty bodies with opportunities to undertake monitoring and technical assistance activities outside the usual procedures of examination and commentary on the periodic reports submitted by a state.11 Since the treaty bodies normally have competence to deal only with sovereign governments, it is noteworthy that the invitation also is extended to nonstate parties (the Entities).
HRCC has recognized the significance for long-term monitoring and institution building of active involvement by the treaty bodies and, in 1996, coordinated the preparation of submissions to the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child. It met with limited success and will require a continuing focus.
ADDRESSING THE PAST
The wars in the former Yugoslavia have left a bitter legacy of hate, fear, and anger. Multiple local and international efforts are under way to deal with this legacy, many of which involve international human rights operations. Clearly, one of the most significant steps toward addressing the past and promoting reconciliation would be the establishment of conditions for the voluntary return of displaced persons.
The elections were viewed as an opportunity to provide the democratic base on which a just future might be built. The 1996 elections served no such purpose and, in the context of massive violation of the rules applicable to democratic campaigning, returned to power
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the leaders who had waged the war. OSCE's mishandling of the elections compromised its integrity and damaged the reputation of all parts of its operation, including the human rights and democratization programs.
Determination of the fate of the some 18,000 missing persons is an important element in creating conditions for reconciliation. This classic role of the ICRC was undertaken by a number of actors in Bosnia and Herzegovina: The UN Commission on Human Rights appointed an Expert on the issue; the Special Rapporteur became involved; the U.S. administration funded a high-level international commission; and the ICRC itself developed programs. Lack of cooperation from the local authorities has contributed to the failure to determine the fate of the majority of missing persons.12
The ongoing inability of the International Criminal Tribunal for the former Yugoslavia to obtain custody of indicted war criminals is well documented. As of June 1997, only eight of the seventy-four indictees were in custody.13 The international human rights operations have continued to press the issue. The IPTF on a number of occasions has publicly shamed IFOR/SFOR by drawing attention to the fact that information given to the troops on the sighting of indictees was not acted upon. The Principals, spurred by the Human Rights Task Force and HRCC, have continued to devise and implement strategies to encourage indictees to surrender. One current stratagem is to persuade outside states to refuse entry or transit visas to any such person. It was agreed in June 1997 that municipalities in which indicted persons held public office would be denied all economic aid. HRCC maintains close contact with the Tribunal, often providing information of which it would not otherwise be aware.
War crimes cases tried in local courts, if carried out with full respect for due process of law, may also contribute to the process of reconciliation. Agreements between the International Tribunal and the authorities in Bosnia and Herzegovina (the so-called Rules of the Road, adopted in Rome on February 18,1996) stipulate that persons may be held for trial in Bosnia and Herzegovina if the Tribunal first certifies that there is sufficient evidence on which to proceed and then relinquishes jurisdiction. The terms of the agreement were persistently violated in 1996. Consistent HRCC monitoring and intervention led to a substantial reduction in violations by the Federation in 1997. Republika Srpska refuses to cooperate. The HRCC has also frequently harried the Tribunal into addressing such issues in a timely manner and its trial monitoring project gives priority to the monitoring of local war crimes trials.
A number of small-scale community reconciliation projects have been initiated in various locations in Bosnia and Herzegovina with
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support from the Office of the High Representative and OSCE. These well-intentioned projects, targeted at the current local populations, have perhaps been implemented on the false premise that a community can be reconciled prior to correction of the distorted demographics that result from "ethnic cleansing."
Reflection continues on the usefulness of establishing some form of Truth Commission for Bosnia and Herzegovina. Wide-ranging consultations seek to address difficult problems such as the appropriate model for a country in which the elements that led to or perpetuated the war are still in place.14
The Special Rapporteur has been mandated by the UN Commission on Human Rights to compile an overview of the human rights situation in the former Yugoslavia since 1991, with a view to the promotion of reconciliation. She is currently in the process of devising a project whereby the report can be drafted.
The process of addressing the past will require that the human rights operations intensify pressure for arrest of indicted war criminals; continue to monitor compliance by local authorities with agreements reached with the International Tribunal; persist in encouraging the Tribunal itself to follow the agreed procedures; and coordinate and ensure the appropriateness of the range of reconciliation initiatives. It also falls to the human rights missions to persist in insisting both publicly and within their own organization that the past can only be addressed and reconciliation promoted if conditions are created whereby the displaced are given a genuine opportunity to return home in safety.
CONCLUSION
Human rights missions deployed in Bosnia and Herzegovina are confronted by a dauntingly difficult situation. They must deal with multiple parties (Bosniaks, Bosnian Croats, Bosnian Serbs, and others) in various configurations, some of which, such as the Federation partnership, are fragile and shallow. Difficulties are magnified by the continuing control wielded by the warmongers, the extent to which war criminals remain at large, and the failure to reverse the effects of "ethnic cleansing." The constitutional and other arrangements of the GFA compound the local complexities by establishing state structures and systems that subvert the pursuit of justice and the promotion of reconciliation.
The GFA also, of course, contains extensive, important, and innovative human rights provisions; these provisions, however, create complications because of their sheer abundance and lack of mutual coherence.
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The task of the international community is further complicated by the existence of a multiplicity of mandates. A number of international operations have overlapping human rights monitoring and intervention assignments. In regard to institution building the situation is even more complex, given the vast array of international and local governmental and nongovernmental bodies that wish to be involved. Within this welter of activity, the international human rights operations' efforts to chart courses of useful activity have been complicated by the GFA's failure to designate a lead agency for either all or part of the human rights tasks, or to give a clearly articulated coordination role to the High Representative.
The urgent need for models of cooperation and coordination led to the High Representative's office establishing the HRCC and its associated mechanisms. These have had some success, notwithstanding the ongoing need for development. The principal achievements have been in the fields of human rights monitoring, intervention, and public reporting, along with continuing improvements in the joint and several activities of OSCE, IPTF, the Office of the High Representative, and other HRCC participating organizations.
The international organizations have fewer successes to show in human rights institution building. The main achievements have related to support for the various State human rights institutions and for the local NGO community. Reform of the police and judicial systems, however, has yet to bear fruit. The work of human rights education remains in its infancy. The task of addressing the past faces numerous impediments blocking any real progress.
While lack of significant progress in the institution-building sectors has multiple causes, one of the most important of the responses must be a strengthening of the HRCC system. Success requires the cooperation of myriad interested agencies. Given the multiple competencies and sovereign mandates of the various actors, this cooperation cannot be based on the model of a strong lead agency. Instead, a participative and horizontal form of cooperation must be encouraged. Many organizations present in Bosnia and Herzegovina have yet to fully accept the merits of supporting this model. Thus, some organizations that are already part of HRCC only make partial use of its services and occasionally act unilaterally in a fashion that undermines attempts to develop multiagency strategic programs. Other actors, including the NGO and donor communities, have not yet acknowledged the need for close cooperation in general, or between the intergovernmental and nongovernmental sectors in particular.
HRCC itself must develop further if it is to attract the confidence and support of the human rights community. It needs to demonstrate
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that it can consistently gain attention at the top levels of policy making among the international organizations implementing the peace accords. In this regard, the internal HRCC management structure should be reviewed in order to raise the profile and standing of HRCC. One possibility, would be to separate the functions of the director and the human rights advisor to the High Representative, with a concomitant grant of participation to the director in the meetings of the Principals. Separation of the roles might also free the director to spend less time addressing the day-to-day emergencies that now, inevitably, demand the attention of the current incumbent of the combined posts. A less radical restructuring of HRCC would be to have two directors, thereby dividing the management responsibility for human rights monitoring and institution-building activity within HRCC and the Office of the High Representative.
At the operational level, HRCC should integrate and expand existing regional coordination so that its impact is felt not just at headquarters level in Sarajevo. It also needs more personnel with experience in the management of multiagency cooperation, as well as with needs assessment and the provision of technical cooperation for institution building.
Enhanced implementation of all aspects of the mandates of the human rights missions present in Bosnia and Herzegovina will also require concerted efforts by each agency to address internal organizational deficiencies. The IPTF still awaits the specialist officers requested in 1996 and has yet to provide human rights training for officers deployed in 1997. UNHCHR/CHR is handicapped by a lack of policy guidance or of appropriate levels of administrative and managerial support from its headquarters. OSCE has been hampered by the organizational nexus between election support and human rights, and though a novice in deploying a substantial human rights field mission, it has picked up many of the bad habits of other human rights operations in recruitment policy and inadequate in-service training (though 1997 has given indications of significant improvements). The Council of Europe finds itself profoundly implicated in the institution-building sector but lacks the capacity for sustained field work.
Many of the HRCC organizations and other governmental and nongovernmental actors need to further professionalize their activities. Too much work continues to smack of amateurism. In human rights institution building, for instance, it is commonplace to find poorly planned projects that lack sustainability, fail to integrate local skills and resources, and do not incorporate evaluation or impact assessment. Meeting the challenge of professionalization may require
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a fundamental reevaluation of recruitment methods and systems of project and personnel management, as well as the maintenance of in-service training programs. There is a role for HRCC in helping the organizations to meet these needs and in generally promoting compliance with "best practice" standards.
Reform of the various organizations and their closer cooperation will not alone bring a culture of human rights to Bosnia and Herzegovina. An array of local and international circumstances will determine the ultimate success or failure of that ambition. Reform and cooperation will, however, greatly increase the odds that any future evaluation of the international operation will conclude that all was done that could be done to help bring a just peace and a culture supportive of human rights to Bosnia and Herzegovina.
NOTES
The author wishes to thank Roland Salvisberg, Maria Stavropoulou, and Greg Gisvold for commentating on drafts of this paper and Peggy Hicks, Craig Jeness, Jim Ross, and many others for generously giving of their time.
1. See the various papers in M. O'Flaherty and G. Gisvold, Post-war Protection of Human Rights in Bosnia and Herzegovina (London/Boston: Dordrecht, 1998).
2. There is dispute over the applicable standard regarding the death penalty: whether it is the absolute ban in the Second Optional Protocol to the International Covenant on Civil and Political Rights or the partial ban contained in Protocol 6 to the European Convention on Human Rights.
3. For an exhaustive independent analysis, see International Crisis Group, Going Nowhere Fast: Refugees and Internally Displaced Persons in Bosnia and Herzegovina (Sarajevo: April 1997).
4. In one notorious and well-publicized incident, an IPTF station reported to regional headquarters that there were indicted war criminals serving in the local police station; however, the regional headquarters did not deem the information worthy of transmittal to Sarajevo.
5. OSCE, Guidelines for Processing Human Rights Violations in the Field, vol. 1 (Sarajevo: 1997).
6. The Ombudsperson has, for instance, chosen to develop a working methodology, closely modeled on that of the European Commission on Human Rights, which in its complexity and legalism poses daunting obstacles for the nonlawyer; see Office of the Human Rights Ombudsperson for Bosnia and Herzegovina, Fi'rsf Annual Report (Sarajevo: April, 1997). By comparison, the Federation Ombudsmen operate under a flexible, readily accessible and informal methodology that integrates well with the local cultural and social context.
7. It presented itself as a judicial body but persistently failed to comply with elements of judicial due process such as provision of an effective right of defence or of a right of appeal against imposition of serious penalties.
8. See I. Smillie, Service Delivery or Civil Society, Non-Governmental Organisations in Bosnia and Herzegovina (CARE Canada: December 1996); Dialogue Development, Survey of Bosnian Civil Society Organisations (April 1997); various papers in, Helsinki Citizen's Assembly, Dayton Continued in Bosnia and Herzegovina 2, (Banja Luka: 1997).
9. It negotiated the plan with the "caretaker" central government prior to the 1996 elections and without adequate reference to the fundamental constitutional reform whereby almost all matters concerning promotion of the rights of children would be addressed at the level
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of the Entities.
10. The Human Rights Committee, the Committee on Economic, Social and Cultural Rights, The Committee Against Torture, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination Against Women, the Committee on the Rights of the Child.
11. See M. O'Flaherty, Treaty Body Innovations and Bosnia and Herzegovina, in J. Crawford and P. Alston, The Future of the UN Human Rights Treaty System, (Cambridge Univ. Press: forthcoming).
12. See M. Nowak, Disappearances in Bosnia and Herzegovina, in M. O'Flaherty and G. Gisvold, Post-war Protection of Human Rights.
13. For general information on Tribunal activities, see www.un.org/icty. An excellent ongoing source of independent information on Tribunal activities is the e-mail publication Tribunal Update, available by subscription from the Institute for War and Peace Reporting (major-dom@osa.ceu.hu).
14. In July 1997, a roundtable of interested persons from all parts of Bosnia and Herzegovina and from HRCC participating organizations was convened in Strasbourg by a consortium comprising the US Institute for Peace, OSCE (ODIHR), and the Council of Europe. See G. Gisvold, A Truth Commission for Bosnia and Herzegovina? Anticipating the Debate, in M.O'Flaherty and G. Gisvold, Post-war Protection of Human Rights.
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