Detailed discussion, including origin in the Petrie Report on UN failures in Sri Lanka [PDF]
by Gerritt Kurtz, ‘With Courage and Coherence: The Human Rights up Front Initiative by the United Nations,’ Policy Paper, Global Public Policy Institute, July 2015
During its final offensive, in 2009, the Sri Lankan army closed in on the Liberation Tigers of Tamil Eelam (LTTE), as well as 300,000 civilians trapped between the fronts. The UN system’s response to the crisis was incoherent, ineffective and overly cautious. The rare instances in which the UN brought up the conflict’s serious threats to civilians were due to the courage of a few individual officials, some of whom were punished for speaking out. The Human Rights up Front initiative, launched in December 2013, was designed to prevent the UN from repeating its failures in Sri Lanka. In the words of Deputy Secretary-General Eliasson, the initiative continues the learning process that began in the wake of the Rwanda and Srebrenica genocides in 1994 and 1995, respectively, which had shocked the organization to its core.1
Thus far, HRUF has focused almost exclusively on the UN system – that is, it has rarely involved member states and civil society organizations. While this cautious approach may have been initially necessary to avoid pushback from skeptical member states, making human rights protection fundamental to the UN’s work will require political support from constructive member states.
Accordingly, this report calls for stronger, more nuanced engagement of member states with HRUF. The initiative is a bureaucratic action plan with deadlines, responsibilities and regular reviews, as well as more than 60 individual measures for improving system-wide coherence and capacities. HRUF is also a catalyst for a more activist UN system that treats the protection of populations from serious human rights violations as a central objective of the entire organization, down to every staff member. If member states want to support these objectives, they need to be aware of HRUF’s political and strategic contexts, including the thought process of UN officials behind the initiative.
This thought process was greatly influenced by the events in Sri Lanka in 2008 and 2009, as well as by internal and member state–related challenges repeatedly faced by UN crisis response. With the aim of contextualizing HRUF, this report describes the initiative’s origins in the Sri Lanka case, the current stage of its implementation in the UN bureaucracy and the potential difference it can make in the UN’s response to escalating crises.
A fair assessment of the UN’s engagement with political crises and serious rights violations must consider both the challenges faced by the UN and the levers it may be able to use. A previous draft of the HRUF action plan acknowledged the inherent limits of UN action “when a government abuses its own people, shuts out the UN, or when gridlock among States paralyses action.”2 There is often no political agreement between warring parties or within the Security Council on how to resolve the conflict. Nevertheless, UN agencies are working on the ground to deliver humanitarian aid, build state capacities and monitor human rights violations. As such, the UN system plays an important role in the protection of populations from serious violations, potential or actual, of international humanitarian and human rights law.
The UN system is in an advantageous position. It possesses unique insight into the political, economic and humanitarian situations in countries at risk of mass atrocities. It has leverage with these countries’ governments due to its substantial local deployment, assistance programs and ability to raise publicity. It can influence international policymaking through early warning, briefings to member states, and independent collection of data on rights violations. As an organization with universal membership, the UN enjoys unique legitimacy that lends considerable weight to statements made by its leaders. But to be even more effective, UN efforts must tie in closely with those of member states, which usually have far greater leverage due to their economic, development or military engagements with a country.
This report is based on in-person and phone interviews with many of the UN officials at the heart of HRUF’s implementation, as well as with other UN officials, diplomats and civil society representatives. The paper seeks to provide a strategic perspective on the design and implementation of the initiative. To do so, this report first describes how HRUF emerged in response to the UN’s failures in Sri Lanka in 2008 and 2009. Next, the paper analyzes the strategic thinking of the initiative’s designers and the politics of organizational change within the UN. In an overview of the institutional measures set forth by HRUF, the paper considers the bureaucratic politics associated with each and their impact on the UN’s engagement with member states. The paper examines the initiative’s implementation thus far and remaining areas of concern, providing examples of the UN’s application of HRUF measures in a number of quickly escalating situations, such as in the Central African Republic, South Sudan and Nigeria. The report concludes with policy recommendations for how member states can lend greater support to the HRUF agenda.
“Systemic Failure” in Sri Lanka: The Roots of Human Rights up Front
In the fall of 2008, when the Sri Lankan civil war entered its final phase, the UN did not adequately raise the issue of direct threats to civilians with the Sri Lankan government and with UN member states. In several instances, the UN failed to disclose full information about threats to and attacks on population centers and medical facilities. It even tried to silence staff members who did so.
In September 2008, when the UN was forced to withdraw from Kilinochchi, the de facto capital of the rebel-held territory in the Northern Province of Sri Lanka, it did not make public that the government had repeatedly bombed the vicinity of the UN base, and that shelling by the Sri Lankan army posed a serious threat to UN staff. The withdrawal of UN workers led to the absence of international witnesses to the war3 and substantially complicated the delivery of humanitarian aid. The UN began sending weekly humanitarian convoys to the rebel-held territory under increasingly dire security conditions.
When a UN staff member attempted to comment on the gravity of the situation, he was essentially silenced. In December 2008, John Campbell, a World Food Programme (WFP) employee accompanying one of the convoys, told the BBC Sinhala service that conditions were “much less than ideal” and compared them to what he had seen in wartorn Somalia. Campbell’s comments provoked heavy criticism from the Sri Lankan government. In response, WFP Country Director Adnan Khan failed to back up his subordinate and called Campbell’s statement a “personal opinion.”4 Subsequently, the Sri Lankan government banned Campbell from working in the North, and the UN did not renew his contract.5
The UN continued sending mixed messages to the Sri Lankan government. In January 2009, the 11th aid convoy was trapped in LTTE-controlled territory for two weeks, and two of its workers witnessed the Sri Lankan army shelling medical facilities. The army continued shelling the facilities despite having been repeatedly informed of their GPS coordinates. Consequently, the UN Country Team began an initiative to systematically collect data about civilian casualties. Every casualty had to be verified by three independent sources, including one national UN staff member. The UN later presented the data to the diplomatic community in Sri Lanka, but did not reveal that the army, as shown by the data, was responsible for the vast majority of casualties. When then UN High Commissioner for Human Rights Navi Pillay published the confidential figures on her own, Resident Coordinator Neil Buhne, on instructions from headquarters, apologized to the Sri Lankan government and emphasized that the figures were not reliable.6
Overall, the UN was cautious about publicly criticizing the government, for fear that such comments could be counterproductive and further restrict the already little humanitarian access retained by the UN and international aid agencies. But after the forced withdrawal of staff from Kilinochchi and the shelling of the 11th convoy, the strategy of staying quiet to retain access could no longer be called effective.
Meanwhile, the Sri Lankan army continued to fire artillery shells and drop bombs at sites with high population densities. The LTTE held civilians hostage and forced them to join the rebels in retreating to a small strip of land in the country’s northeast. Each UN agency focused on its specific mandate – providing food, shelter, health services or protection for internally displaced persons (IDPs) – but “nobody really had priority for the human rights and humanitarian law aspects of the situation, which was by far the most urgent,”7 a UN official recalled. The Office of the High Commissioner for Human Rights had on the ground only one human rights adviser to the humanitarian coordinator (HC), who did not have the mandate to investigate allegations; the Sri Lankan government had blocked previous attempts to bring in more advisers.
The only UN senior official allowed to brief the Security Council on Sri Lanka was Emergency Relief Coordinator John Holmes, who saw humanitarian concerns – in particular, the safe removal of civilians from the conflict zone – as his first priority. When Holmes pressed the government on its use of heavy weapons in the vicinity of densely populated areas, he found only that “the gap between their fine words and the realities yawned ever wider.”8 In April 2009, he publicly warned of a “bloodbath on the beaches of northern Sri Lanka” and called on the government to “stick to its promise not to use heavy weapons while the fighting lasts.”9 Meanwhile, last-minute negotiations with the LTTE produced no results.10
What difference would a more coherent UN system have made? According to a UN official involved in the internal review of the UN’s actions in Sri Lanka, “having political pressure was the key.”11 That pressure – mostly on the government, as the LTTE was so close to defeat and cared little about outside opinion – would have had to come from member states. “In order to get that pressure,” the official observed, “the UN needs to present member states with a true scenario of what’s happening,” which would require UN agencies and departments to work together more closely.12
Some member states in the Security Council were aware of the events on the ground but felt outmaneuvered by the Sri Lankans.13 Concerned states were effectively trapped by their own policy of labeling the LTTE a terrorist organization and encouraging its defeat by supporting the Sri Lankan government with arms deliveries (European states),14 military training (United States)15 and intelligence support (India and the US).16 Consequently, the Sri Lankan government felt that it could stand its ground against the UN and international non-governmental organizations: it frequently denied or delayed visas, and stopped humanitarian access temporarily when it encountered public criticism from these organizations. Sri Lankan President Mahinda Rajapaksa later complained about US criticisms of the way his government fought the war, when in fact he had been encouraged by then US President George W. Bush to defeat the LTTE.17
Just three days after President Rajapaksa announced the end of hostilities, Secretary-General Ban visited Sri Lanka. After difficult negotiations, the pair released a joint statement that featured a pledge by the Sri Lankan government to address violations of international humanitarian and human rights law.18 The UN subsequently used this pledge as a mandate for preliminary investigations into the violations. Internal evaluations by UN agencies and NGOs like the Norwegian Refugee Council were deeply critical and alleged, for instance, that “the many small concessions made by humanitarians in the name of ‘pragmatism’ . . . created the extraordinary expectation of the Sri Lankan government that it could detain 300,000 people indefinitely inside internationally funded IDP camps.”19
With the publication of more and more evidence of extensive violations of international humanitarian and human rights law, the UN response to these violations came under greater scrutiny. In August 2009, the British TV station Channel 4 aired footage that members of the Sri Lankan army appeared to have taken themselves, depicting their executions of naked Tamil prisoners and other atrocities.20 In October 2009, the US State Department published for congressional review the first of a series of reports on likely international human rights violations.21 In June 2010, Ban appointed a panel of experts to advise him on addressing the pledge for accountability that Rajapaksa had reluctantly made in their joint statement. In March 2011, Gordon Weiss, the UN Country Team’s former spokesperson, published The Cage, in which he expressed his frustration with the UN’s silence on Sri Lanka’s violations of international humanitarian law.22
In response to public pressure and the results of its preliminary investigations, the secretary-general’s panel of experts recommended that the UN conduct “a comprehensive review of actions by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates.”23 Ban subsequently appointed the Internal Review Panel (IRP) on UN actions in Sri Lanka, led by Charles Petrie, who had been the resident coordinator in Myanmar until 2007. Petrie possessed firsthand experience of raising difficult issues with host governments: Myanmar authorities expelled him because his office issued a critical statement during pro-democracy protests.24
The IRP released its report in November 2012. Rather than assigning individual blame, the IRP called the UN’s missteps in Sri Lanka the result of “systemic failure”: the UN system was unprepared for situations in which governments are deeply implicated in human rights and humanitarian law abuses, and the UN system “lacked an adequate and shared sense of responsibility for human rights violations.”25 The overall failure could be broken down into a number of factors: a “model for UN action in the field that was designed for a development rather than a conflict response,” an incoherent crisis management structure, ineffective coordination between HQ in New York and the UN Country Team on human rights protection, and the appointment of a resident coordinator who was too junior and too inexperienced to deal with humanitarian and human rights crises.26
The institutional problems identified by the IRP had implications beyond the Sri Lanka case. In Petrie’s own words, whether a more coherent UN would have changed the behavior of the Sri Lankan government:
“was not the issue. The point is that the system did not use to the fullest extent its moral force. Even the most aggressive governments have been seen to change their behaviour when confronted by evidence of violations of international humanitarian law. And even if a stronger stance on Sri Lanka would not have altered the outcome, it would have demonstrated the UN’s willingness to stand up for its principles, rather than allow them to be eroded, to the detriment of its future leverage in other situations.”27
After the publication of the IRP report, Ban asked Eliasson to lead a followup process. An interagency working group was tasked to determine actionable commitments based on the IRP’s recommendations. The working group consisted of all UN entities relevant to protection: the Department of Political Affairs (DPA), the Department of Public Information (DPI), the Department of Peacekeeping Operations (DPKO), the Office for the Coordination of Humanitarian Affairs (OCHA), the Office of the High Commissioner for Human Rights (OHCHR), the UN Development Programme (UNDP), the UN High Commissioner for Refugees (UNHCR), the UN Children’s Fund (UNICEF), the World Food Programme (WFP), the Office of the Special Adviser to the Secretary-General on the Prevention of Genocide, the Office of the Special Representative on Sexual Violence in Conflict and the Office of the Special Representative for Children and Armed Conflict.
Participants of the working group agreed on the priority of creating a UN that is better prepared for protection challenges, according to an official involved in the follow-up process. “There was no major pushback on this, which is remarkable,” she said. “I didn’t expect this.”28 In July 2013, the group officially recommended the creation of a “rights up front” action plan to Ban. Two months later, he approved the idea. In December, Eliasson briefed member states about the action plan and informed the press.29