Standing up for the victims

Top human rights official condemns all sides in situations that prevent basic civil liberties.

By HILARY LEILA KRIEGER,
November 30, 2006 10:21
Standing up for the victims

louise arbour 298.88. (photo credit: Ariel Jerozolimski)

 
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Asked to name the world's most pressing human rights problem, Louise Arbour, the UN's top human rights official, hesitated. "It might surprise you that I do not immediately say Darfur," she said. It wasn't lack of clarity that made the petite 59-year-old pause; she was clear that the international community should prioritize solving the humanitarian crisis in Darfur, where more than 200,000 people have died and more than 2 million have been displaced as the result of military unrest and alleged atrocities by the Sudanese government against its civilian population. But even in stating the obvious, Arbour was so careful with her words and thoughts that she added a disclaimer. All human rights abuses are important and not to be placed on a scale of equivalency, she told The Jerusalem Post in Tel Aviv as she wrapped up a fiveday visit to Israel and the Palestinian Authority territories. "Every person who is suffering from gross human rights violations needs someone's attention," the high commissioner for human rights said. A native of Montreal and a former Canadian Supreme Court justice, Arbour has devoted her life to seeking justice for those whose basic human rights have been ignored. As the former chief prosecutor for the International War Crimes Tribunal in The Hague from 1996 to 1999, she was instrumental in bringing former Yugoslavian president Slobodan Milosevic to trial. It was a three-year saga that inspired a television movie in 2004 called Hunt for Justice. Arbour was also able to prosecute those responsible for the genocide in Rwanda. In naming Arbour as one of the world's 100 most influential people in 2004, Time magazine credited her with "raising the profile of the tribunal from relative obscurity to what many believe to be the most effective international criminal court ever." In pursuit of that goal, it said that Arbour "stood up to the bullies and stood for the victims." But when Arbour visited the site of a fatal Palestinian Kassam rocket attack in Sderot last week, a few residents expressed their anger at what they perceived to be her failure to stand up for the residents of their city, which has been barraged for the last six years. Their feelings reflected a history of strained relations between the High Commissioner's Office and Israel. "Our children also have a right to live," yelled out one angry resident. Another threw a stone at a departing UN vehicle. In spite of their hostility, she spoke in defense of Sderot residents after visiting with both Mayor Eli Moyal and the families of children in a local kindergarten. Arbour called the rocket attacks a "breach of international humanitarian law" and told the Palestinians they must immediately stop them. In looking at human rights problems both among Palestinians and Israelis, she told reporters in Jerusalem that "this region is suffering from an alarming deprivation of human rights, the primary victims of which are civilians in both Israel and Palestine." She strove to be equally measured when speaking of both Israelis and Palestinians with the Post. But when it came to calling for measures to address the problems, she held Israel more to task. She gave the reporters a page of recommended steps Israel should take on human rights issues, but none for the Palestinians beyond stopping rocket attacks. In her interview with the Post, she sidestepped the question of how the UN's overwhelming focus on censuring Israel to the exclusion of other abuses affects the body's efforts to address human rights violations worldwide. Even the newly formed UN Human Rights Council, which was supposed to address that problem, has in its six months of existence condemned only one country - Israel. It has had little to say on Darfur. Arbour, who was appointed to her post for a fiveyear term in 2004, explained that she is not responsible for the council, which reflects the will of its 47 member states. While she frequently addresses the council, she reports directly to the UN's secretary-general and is charged with investigating human rights abuses for all UN bodies, including the General Assembly. Many Israelis, and even groups like Human Rights Watch, have accused the human rights apparatus at the United Nations, and specifically the new Human Rights Council, of being too focused on alleged human rights violations in Israel to the detriment of other global human rights issues. Do you think there is proportionate focus on Israel? The Human Rights Council is in its first year and is finding its way of proceeding. I am an advocate of all human rights issues being taken up at the highest level, and I hope the council will be very proactive and very robust and willing to throw its weight around on all of these issues. There are many that I would like to see taken up by the council. The United Nations human rights machinery is quite complex. What people sometimes do not understand is the difference, and in a sense the independence, of many of these institutions. The council is clearly a political institution. It is an organization of member states. It has 45 member states elected by the General Assembly on the basis of a regional allocation of seats. It is presided over by a president elected by the council, currently the ambassador of Mexico, so in a sense it has nothing to do with me. What it does and what I would like it to do are two different things. The Office of the High Commissioner for Human Rights serves as the secretariat to the council, but that is one of many things we do... I do not need to be mandated specifically by the council to do anything, which is why I got an invitation from the government of Israel to come here. I am here as an interlocutor to the government to pursue any issues of mutual interest. We have very free and open discussions, and I report to the council. But what of the focus on Israel and whether it is appropriate? There are lots of parts of the world that need a lot of attention on human rights issues. The ones that tend to be the most politically sensitive are places where there are human rights violations in relation to armed conflict. There is no question that when you have either an international or an internal armed conflict, it exacerbates the politicization of human rights issues. When you have human rights violations that are linked to countries' lack of capacity or all kinds of internal difficulties, it is one thing. When there is armed conflict, very often the Security Council is also [involved], and that is why I think in the case of Israel, the applicability the laws of war or international humanitarian law puts an additional level of scrutiny on Israel. But there are lots of other places that also need to be given a lot of attention. It is not for me to comment on how member states select where to focus their attention. From my point of view, it is important for me as high commissioner to be attentive on an equal basis to all these situations. On your visit here you were in Sderot and Beit Hanun. What have you seen and how do you assess potential human rights violations in these places? In my view there are lots of very serious human rights issues, which is not surprising when you are facing a very acute security crisis. When I was in Beit Hanun, I saw perfectly innocent civilians, women, whose families had been destroyed and who had been victimized by a situation not within their control. What was very striking, what they said to me, was how abandoned they felt. This is not a political discourse. These are totally distraught women whose babies have just been killed in an artillery attack and who were saying to me, "Where is the world? How can this be happening to us and no one is coming to our rescue?" The next morning I was in Sderot, and as it happens, I was there at the very moment a Kassam rocket attack took place. As we drove into town, the sirens went off and we pulled over. We went to the site [of the attack] and after it was over I went to visit a little kindergarten and spent about an hour with women who have young children, and essentially were saying the same thing to me: "We feel so abandoned. How can we be so exposed, so vulnerable and so unprotected? What have we done to deserve this?" You have to appreciate this was said very emotionally. It was said in many ways to convey the sense of abandonment and betrayal. What did you tell them in response? I said that I shared their - you cannot share their feeling - but their claim that there ought to be accountability and forms of protection made available to them. It becomes quite complicated. Certainly the last thing I would do is make promises that I cannot deliver on. But as the world's representative on human rights, what did you tell them? I said I would call on those who have the primary responsibility to protect them. In the case of Beit Hanun, first the Palestinian Authority, and then more broadly the Israeli government, which conducts military operations here... In Sderot, it's more complicated because there is an internal debate within Israel as to whether the rest of Israel cares sufficiently. But I said the same thing. To the extent that this originates on the Palestinian side, I have already spoken to President [Mahmoud] Abbas and conveyed to him his obligation to make that criminal activity cease, and I will speak to your government about also their responsibility to do everything they can within legal means to offer more protection. What is very striking is that these are very different communities, very different circumstances, but these innocent civilians have this real sense of abandonment and despair [over] how to regain control of their lives. There is no question that in Gaza [and the] West Bank there are lots of other very serious violations of human rights, when you understand human rights broadly to include economic and social rights. We are talking here about the right to education, health, housing, food. In particular, the predicament for the civilian population in Gaza is extremely precarious. In the West Bank there are very serious questions of infringement of the right to freedom of movement. People may say, "Well, that's not a big deal. What kind of a right is that?" It's a huge deal for a community [that] has to rely on the capacity to move for its economic survival and growth. It's not just that it curtails immediate access to health care facilities and makes life more difficult. It is also another sense of disempowerment or lack of autonomy and control over your own life. There are lots of issues inside Israel itself, like in any democracy. I am pleased to have found here a very active human rights defenders community that is preoccupied with a whole range of issues, including equality within Israeli society, and all the issues that normally need to be addressed in a democratic state. From the Israeli perspective, limitations on the freedom of movement are necessitated by security. Do you agree that in some situations, security is a legitimate concern and, therefore, limitations have to be placed on other human rights? Absolutely. In fact, I go much further than that. It is not just a question of the right of the state to employ security measures. I would say, it is the actually the duty of the state - maybe its primary responsibly - to protect its own citizens and all those who fall under its jurisdiction or control. That is why we live in communities and elect our representatives: so collectively we can look after each other. The right to life is fundamental and states have a duty to protect it. They have a duty, though, to do that first of all within the law. The best example to give, even within Israel, is that we could all be perfectly safe if we had curfews every night, and no one could go out after 6 p.m. It's very safe, but it is not very free. Typically, I think, when we elect our government, we give it the mandate to constantly try to find the perfect balance between our desire to be safe and our desire to be free. That is the nature of our aspirations as human beings. Where it becomes very difficult is when you distort the balance and, instead of asking, "How much of my freedom am I prepared to sacrifice to ensure my security?", you start asking, "How much of the freedom of others am I prepared to sacrifice to protect my security?" Then the answer is pretty easy: 100 percent. We have to pose it collectively as a society: "Where is an appropriate balance between the two?" When you face security threats as acute as Israelis face, you have to be willing to consider a considerable surrender of some freedoms that everyone wants to enjoy. But when you look at the freedom of movement in the West Bank from a security perspective, you have to ask yourself: "How many more restrictions is it reasonable to impose, not on the terrorists, but on the potential terrorists and every one else in the population, many of whom are not terrorists and would not resort to these activities?" On the other side of the equation, you have to look at what is the reasonable apprehension of harm. It's a very difficult judgment call. I don't envy those who have to find that balance on a daily basis. But are you saying that maybe it hasn't been struck appropriately in this case? Well, there are concerns. You are never sure that those in public opinion who are called to endorse their government's position are sufficiently aware of the impact, because the impact is not on their life. It is a lot more difficult to put yourself in someone else's shoes. Someone says, "They have to drive an hour and a half longer to get from A to B." It may not sound like a big deal, until you realize what it is for an entire community to be put under these kinds of restrictions. So again, I would say the collective public judgment sometimes is very difficult to rely upon because it is not clear that the full appreciation of the facts is in place. There is no question that when you look at these barriers, checkpoints and so on, it is very heavy. Concerning Lebanon, you were quoted a few months ago by the Associated Press as saying, "The rising number of lives lost, whether as a result of targeted killings or suicide attacks, homemade missiles or artillery fire, is unacceptable." I am not sure I referred to suicide attacks in the context of the Lebanon War. Anyway, my statements are all traceable verbatim. I can tell you in a general sense what I said at that time. My recollection of what was happening in Lebanon is that it posed very squarely the question of proportionality. In the case of Hizbullah, when they were apparently - I am not privy to any secret information, like everyone else I read the newspaper, I am very well informed - on the basis of what was apparent from the press, there were a lot of questions that had to be addressed regarding the conduct of Hizbullah not being in conformity with the principles of armed conflict, with the laws of war, in that they were using weapons that appeared not to be targeted at any military target. It is exactly the same as the Kassam rockets. They imply an indiscriminate attack on civilians because they do not purport to be directed at any particular target of military significance. That in itself is very problematic and raises a lot of questions about whether they're in conformity with the laws of war. At the same time, I felt there were a lot of questions that had to be raised regarding the level of collateral civilian causalities that the Israeli Defense Forces seemed to be prepared to accept in the pursuit of what we had to assume was otherwise a legitimate military target. First you have to look at the importance of the military target. If it's a nuclear arsenal, I think you have to be prepared to suffer a lot of civilian collateral casualties to destroy something of that order of magnitude. If it's a strategic target that has, for instance, a mixed military and civilian utility - a bridge or a power plant - and it is foreseeable that the civilian casualties would be very severe, including women and children, I think a lot of questions have to be raised as to whether the political and military judgment, once again, has the balance right. In terms of human rights violations, do you see any distinctions between missiles that attempt to inflict damage indiscriminately on civilians as compared to military strikes in which civilians are not the target, but for which the casualty count can be quite large? Is there a difference under human rights law, taking intent into account? This is all governed by international humanitarian law, by the Geneva Conventions. Human rights law is about the protection of the right to life, of physical safety in all circumstances. Now we are entering fine distinctions. In one case, you could have, for instance, a very objectionable intent - the intent to harm civilians, which is very bad - but effectively not a lot of harm actually achieved. But how can you compare that with a case where you may not have an intent but you have recklessness [in which] civilian casualties are foreseeable? The culpability or the intent may not sound as severe, but the actual harm is catastrophic. In my view, it is not all that helpful to compare the two. What you have to ask yourself is, "In each case is the conduct illegal?" It is as though you said is rape worse than robbery. When you talk about most crimes, though, there are very big distinctions made in the laws between, say, the attempt to murder as oppose to manslaughter, where the intention at the outset was not to kill. In my view, a lot of the debate about Lebanon, for an uninformed public, was posed in very crude terms between accident and intent. Unfortunately, in law there are lots of degrees in between that range, from engaging your civil responsibility to engaging your criminal responsibility. You can have something that is purely accidental, that could be called an act of God, unforeseeable, no human precaution could have precluded it. Then you move into negligence, then gross negligence, then recklessness and then intent. Certainly in the criminal law that I know, there is very little distinction between recklessness and intent. It is a small distinction as to whether you desire the result, or you foresee it as virtually certainty and you do not care. In terms of culpability, there is not a lot of difference between recklessness and intent, but there is lot between recklessness and accident. When you talk about collateral civilian casualties in military operations, I believe in lots of cases it is not intentional. But certainly on the surface in lots of cases it looks pretty reckless. When you kill civilians virtually each time, at some point you have to ask yourself, "Wasn't that foreseeable that so many would be killed?" That is where I think you start having to engage in the possibility that it is somewhat culpable. If you had to pick a country in the world where you think the international community should be most focused on human rights abuses, where would you choose? Every person who is currently suffering from gross human rights violations needs someone's attention. It is very invidious to be dismissive, to say that unless it is on genocidal scale we shouldn't waste our time. So I want to preface [my comments] by saying that there are people, though it may seem like small numbers, who are suffering terribly, who are being tortured, demeaned, starved. All these people require someone to look after them. But when we look at engaging the full force of the international community's attention, Darfur, [whose violence] is now spreading into Chad and the Central African Republic. There is no question. It calls on our moral conscience collectively and I hope that the government of Sudan will open up to scrutiny and accountability.

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