Human Rights Diplomacy

Journal of Strategic Affairs VOLUME IV – ISSUE NO.1 Winter 2019 wi Human Rights Diplomacy Dr. Shireen M Mazari Human Rights Diplomacy Dr. Shireen M Mazari Journal of Strategic Affairs Volume IV, Issue No. 1 Winter 2019 About the Author DR SHIREEN M MAZARI founded the Strategic Studies Institute Islamabad Pvt (SSII) – a private research centre in January 2013 and served as its Director General until August 2018. She is currently the Federal Minister for Human Rights. Between August 2000 and May 2008 Dr Mazari served as the Director General of the Institute of Strategic Studies (ISSI). Her previous professional assignments include: Consultant on Defence and Security, 1999-2000; Editor-in Chief and Publisher of PULSE Weekly (1993-1999); Chairperson/Associate Professor, Department of Defence and Strategic Studies, Quaid-i-Azam University, Islamabad (1988-1993); Guest lecturer, National Defence College, Islamabad. While at Quaid-i-Azam University, Dr Mazari was elected as Secretary and then President of the Academic Staff Association and in these capacities she also served as Secretary and President of the Federation of All Pakistan University Academic Staff Associations (FAPUASA). Dr. Mazari has been a regular columnist for the main English dailies of Pakistan and was Editor of The Nation – a leading English Daily, from 2009 to 2010. She has written extensively on issues of defence and security. Dr. Mazari has also authored a book titled “The Kargil Conflict 1999: Separating Fact from Fiction”. The book is a ground breaking study of the Kargil Conflict from a Pakistani perspective. Copyright © 2019 Strategic Studies Institute Islamabad ALL RIGHTS RESERVED No part of this publication may be reproduced, distributed, stored or transmitted in any form or by any means without the prior permission of the Strategic Studies Institute Islamabad. 2 Human Rights Diplomacy Dr. Shireen M Mazari Diplomacy in traditional terms - like war before the evolution of hybrid warfare - was inter-state relations, through strict diplomatic traditions governed by Vienna conventions, relating to traditional spheres of concern for states like inter-state politics, trade etc. and diplomacy consisted of polite inter-state interactions amongst diplomats described so wittily by Lawrence Durrell in his hilarious accounts on diplomatic adventures! As inheritors of the British legacy of colonialism, our bureaucracy including that of the Foreign Service reflects the old British tradition of Stiff Upper Lip, the notion of Esprit de Corps and learning how to use forks, knives and spoons – classes in this form of etiquette being for the spouses too! While not denying that all this may still be an advantage, we have to realise that the world has moved on – this is the age of specialists; these are times when international conventions and treaties have eroded the concept of the anarchic world order as states have voluntarily chipped away at their sovereignty by agreeing to international agreements to govern their interstate relations in a growing number of fields; and these are times when international law is required to assess how to move forward advantageously in a world strewn with treaty and convention commitments. In the case of Pakistan, the country has opted to become party to a plethora of human rights conventions1 and has accepted special agreements with the likes of the EU for trade purposes in exchange for fulfilling its commitments on the undertakings it has chosen by signing human rights conventions. However, what is not being realised, although lip service is being paid to the concept, is the centrality of human rights diplomacy today in international relations. So what exactly is HR diplomacy and how is it different in scope from traditional diplomacy? Human rights diplomacy has been defined as the “negotiating, bargaining and advocating processes associated with the promotion and protection of international human rights”.2 Inevitably, the first question this would raise would be how to conduct such diplomacy in the most effective way, balancing on the one hand considerations relating to the promotion of respect for international human rights law, and on the other hand, maintaining friendly relations between States and thus adopting a more behind-the-scenes approach to resolve human rights issues. How we carry out human rights diplomacy determines, to a large degree, the success of such interventions. There are many factors that need to be taken into consideration: (i) The human rights issue you are talking about: Is it something that would benefit from public diplomacy since the issue concerned is already shrouded in secrecy? Or are we talking about a particularly sensitive issue, where work in silence may actually yield more effective results whilst also preserving human life? 3 (ii) The State one is dealing with: If it is a State that has a record of non-action or nonresponsiveness on human rights abuses, should human rights diplomacy try a different approach rather than naming and shaming? Moreover, what would human rights diplomacy have to offer the country on the receiving end? What kind of pressure you apply, and to what extent, should also take into account what the State you are dealing with has to win or lose from conceding to or resisting such pressure. (iii) A State’s own institutional capacity: Since each State has different economic, political, strategic and other concerns on the basis of which it shapes internal and external policies, the institutional capacity of each State will differ in terms of what it can do to engage in human rights diplomacy, and how it will conduct itself once it chooses to so engage. This is at the State level, but what about us as individuals: how do we determine whether public advocacy is required or some other approach? From my own experience in academia, journalism and now politics, I’ve realised that often there are combinations of human rights diplomacy strategies that should be adopted. Often, we can achieve through quiet diplomacy what we cannot by naming and shaming. The need of the hour may be respectful and private dialogue rather than a hostile confrontation. Also, the issue of human rights cannot simply be limited to inter-state diplomacy. Human rights actors now also include the private sector including the industrial and commerce sectors – especially in the context of export industries as well as a country’s commitments to ILO conventions. Industrial enterprises realise their business reputations cannot suffer and when they are called out publically for human rights violations or even adverse environmental impacts of their business operations, they are faced with the threat of losing out on market share because of a bad reputation – thus, they may be more inclined to act if publically named and shamed. Business and Human Rights is now one of the many issue areas being discussed at the UN Human Rights Council and Pakistan has also been moving in this field where a comprehensive action plan for Business and Human Rights is in the pipeline. Coming back to the shortcomings of traditional diplomacy in which human rights and international law are cast aside or completely ignored. GSP Plus is one such issue where traditional diplomacy is insufficient to deal with the human rights issues raised by the EU which require various stakeholders in the government to fulfill the commitments that Pakistan signed up to when it became a party to international conventions, including human rights conventions. On Kashmir also Pakistan has yet to move proactively on multiple international forums in a coordinated manner. On Kashmir the Prime Minister of Pakistan laid out a clear narrative, which was comprehensive, and for the first time holistically drew focus to the Hindutva Supremacist ideology that the present Indian government is pushing forward in Indian Occupied Jammu and Kashmir and now across India too with the new Citizens Amendment Act. Unfortunately, the traditional diplomats have not followed up the Prime Minister’s vision in a holistic manner. 4 After taking initial steps we have failed to officially follow up effectively, fully using the international forums available in terms of HR abuses by India. ➢ August 5, 2019, Minister for Human Rights sent a letter to the UN High Commissioner for Human Rights in Geneva on the use of cluster bombs by India across the Line of Control (LOC) in Neelum Valley on July 30 and 31, 2019. This was in contravention to International Humanitarian Law, especially since Pakistan and India are both States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, without any reservations. ➢ August 23, 2019, Minister of Human Rights sent letters to 18 Human Rights’ Special Procedures Mandate Holders drawing attention to a number of human rights violations covered by them. ➢ September 19, 2019, Minister for Human Rights sent a letter to United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) asking for a humanitarian corridor to be established for Indian Occupied Jammu and Kashmir, citing international law and specifically International Humanitarian Law.3 The letter also pointed out that obstruction of humanitarian aid violates normative pillars of international human rights and humanitarian law. There have been several instances where the UN Security Council called upon parties involved in conflict to provide unimpeded access for humanitarian assistance. These include Afghanistan, Angola, between Armenia and Azerbaijan, Bosnia and Herzegovina, Burundi, Democratic Republic of the Congo, Georgia, Kosovo, Liberia, Somalia and Yemen. Pakistan also has not taken up two important resolutions of the UN Security Council. In a resolution adopted in 1999 on protection of civilians in armed conflicts, the UN Security Council underlined “the importance of safe and unhindered access of humanitarian personnel to civilians in armed conflicts.” These statements were repeated in resolutions adopted in 2000. Again, despite the abuse of women by Indian Occupation forces in Indian Occupied Jammu and Kashmir, including rape as a weapon of war – the Poshpora and Kunan incidents of February 1991 being documented proof of mass rape by Indian Occupation forces – Pakistan has so far failed to take up this issue forcefully by reminding the international community of UNSC Resolution 1325 on Women Peace and Security. 5 Competency and awareness of International Law would help us project the cause of Kashmir more effectively – like citing UNSC Resolutions of 1951 and 1957 which refer to the IOJK Constituent Assembly not being a substitute for people’s right to self determination; referring to the ICJ Opinion on The Wall in Occupied Palestinian Territory and lobbying to seek an advisory opinion through the UN General Assembly on August 5, 2019 illegal Indian annexation of IOJK which is an internationally recognised disputed territory. What I am trying to show is that with the growth in International law especially through treaties and conventions, especially on Human Rights and Humanitarian Law, traditional diplomacy is outdated and fails to understand that the focus of the foreign policy of many states has moved away from traditional notions of inter state interaction. Human Rights have become a central issue for many states. So, what needs to be done? A restructuring of the whole foreign policy infrastructure since foreign policy cannot be left simply to diplomats. Diplomacy now involves many stakeholders including human rights bodies, civil society, business and so on. Also, what is required, at this time, is a focus on thematic human rights diplomacy, as opposed to an approach that is country-specific. If a thematic approach towards human rights diplomacy is adopted, we move a step closer towards overcoming selective human rights diplomacy or human rights hypocrisy, as it is better known. What I mean when I speak of the adoption of a thematic approach to Human Rights diplomacy is for States to develop policies on specific Human Rights areas: women, children, refugees, the differently-abled, religious minorities, journalists, etc. This policy should identify a State’s priorities and conin these areas (internally and externally), and when violations of human rights occur in any of these areas, States must be able to condemn them and follow-up on their redressal with sincerity. With this thematic perspective on human rights diplomacy, we can, in practice, strengthen international human rights standards and even push for the recognition of more comprehensive standards of protection. We now have multiple ways in which to strengthen our foreign policy and bring it in line with the demands of a fast-changing world. 6 References 1. International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; United Nations Convention against Torture; Convention on the Elimination of All Forms of Discrimination against Women; Convention on the Rights of Persons with Disabilities; Convention on the Rights of the Child; International Convention on the Elimination of Racial Discrimination. 2. Kelly-Kate Pease and Kelly McBride, “Human Rights and Humanitarian Diplomacy (1856 - ),” Oxford Bibliographies, May 29, 2015, doi: https://dx.doi.org/10.1093/obo/9780199743292.016.0126. Excerpts from the letter: The obligation of parties in a conflict to “allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need” (Rule 55) features as a fundamental principle under customary international humanitarian law. I wish to draw your attention to the Report of the Special Rapporteur of the Human Rights Council on extrajudicial, summary or arbitrary executions (August 2018), especially with regard to the fundamental right of access to basic humanitarian assistance in the form of medical aid and food. “The right not to be arbitrarily deprived of life is a foundational and universally recognised right, applicable at all times and in all circumstances, including during armed conflict or other public emergency. (A/72/335).” “Limitations on the right to life cannot be justified on grounds of national security, protecting property, asserting the authority of the State or imposing moral or religious values (A/71/372).” “The Human Rights Committee recognises that the right to life places not only negative obligations on States (“don’t kill”) but also positive obligations (“protect life”) to ensure access to the basic conditions necessary to sustain life.” Measures which restrict “access to all basic and life-saving services such as food, health, electricity, water and sanitation” violate this principle. (CCPR/C/ISR/CO/4) Under international humanitarian law, a State has two sets of obligations with regard to humanitarian services: “a positive obligation to agree to, and facilitate, such services and a negative obligation not to impede the offer and provision of humanitarian services to individuals and populations in need.” “Parties to an armed conflict must protect civilian humanitarian actors, not just from attack, but also from harassment, intimidation, arbitrary detention and any other activities that might impede their work.” “When the civilian population is not adequately supplied, no party to an armed conflict may arbitrarily withhold consent to offers of legitimate humanitarian services from an impartial humanitarian body. Refusing relief action or consignments is thus not a matter of discretion.” 3. 7