LEE FEINSTEIN: Well, welcome all to the Council on Foreign Relations, and thank you for coming at this special time. We're beginning a little bit late, so we'll end a little bit late, but we'll spend exactly an hour for this terrific opportunity.
Well, it's an honor to welcome you all here for an on-the-record conversation with the United Nations High Commissioner on Human Rights, the Honorable Louise Arbour. I'll try my best to pronounce it with a Canadian accent, but I will fail, I'm sure.
Justice Arbour was appointed to the post of High Commissioner for Human Rights in 2004. She was previously appointed to the Supreme Court of Canada in 1999, serving there for five years. Prior to that, she was appointed by the Security Council to serve as chief prosecutor for the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. And I still don't know how anybody could do both of those things at the same time.
LOUISE ARBOUR: Well, thank you.
FEINSTEIN: She served with great distinction, prior to that, in various roles with the Canadian government and in academia.
And I had the privilege of meeting her in Geneva as part of a delegation with the Gingrich-Mitchell Task Force on the United Nations in the spring of 2005. And all of us walked away very impressed with your candor, your practicality, and principally your focus on enforcement, which made a big impression on us and, frankly, on the results of that task force. So it's very much for me a privilege to resume this conversation.
Welcome, High Commissioner Arbour.
I'll begin with a few questions and then broaden the discussion to include all of you. This is, of course, a reminder also to turn off your BlackBerrys and cell phones.
Well -- (laughter) -- Yes, I know, I'm the same! I'm keeping mine on "mute." So here you go.
High Commissioner Arbour, this is a group of experts. But I, nonetheless, thought it would be important if we could begin the conversation with hearing from you a little bit more about your office's role, and I guess in particular in the field. Because even with an audience like this, there isn't perhaps a full appreciation of what your office is doing in the field, and also what your plans are for enhancing and expanding your field operations. And I gather you're just coming from a three-week road trip, so talk about that as well.
ARBOUR: Yes. Thank you. Thank you very much. And I just told Lee that I'm hugely intimidated at the prospect of having a dialogue with him on responsibility to protect an area in which his expertise I think is extremely well established. But I am happy to have an opportunity to say a little bit more about the work of the Office of the High Commissioner for Human Rights because I believe in this city, in this country, actually, it is easily confused with the Human Rights Council, not always to our advantage. So I thought at the outset maybe I should say a few things about the human rights machinery in the United Nations. I'll try to be very brief, but let me just paint the picture in broad terms.
One aspect of the human rights machinery, of course, is the human rights treaty body system, a system in which I would certainly like to see the United States occupy a considerably larger place than it currently does, particularly through ratification of important international human rights documents that the U.S. has not ratified; to mention the most obvious, the Convention on the Rights of the Child, and the Convention on the Elimination of Discrimination Against Women. The International Covenant on Economic, Social and Cultural Rights might be a slightly longer ambition, not to mention the Convention on the Rights of Migrant Workers and Members of Their Families, where the U.S. is in good company with the whole of the Western world in not having ratified that treaty. I think the immediate challenge would be for the U.S. to ratify the brand new Convention on the Rights of Persons With Disabilities.
So my office supports services, in a sense. The United Nations human rights treaty body system, which includes as well, of course, the International Covenant on Civil and Political Rights, the Convention Against Torture, and so on. That's one part.
The Human Rights Council, as you know, is a political body of 47 member states of the United Nations elected by the General Assembly on the principle of equitable regional distribution, which means that the Western group, of which the U.S., Canada, Europe, Australia, New Zealand are parties, occupies only seven seats in the 47 seats. Asia has 13, Africa has 13, the Latin American group has six and Eastern Europe has five. This -- it's a -- and the reason I give the numbers is because if things cannot be done by consensus in the council, it will go to a vote, and the numbers speak for themselves as to what regional interests are likely to carry their weight on human rights initiatives in the council.
Contrary to a lot of common assumptions, I am not the president of the council, I'm not the chair of the council, I can't make the council do what I think it should do. I can barely tell the council what I think it should do. So the council is a political body, self-governed, but the Office of the High Commissioner, my office, supports the council, so we are the secretariat infrastructure for the council. So if it dispatches a fact-finding mission somewhere, we support, we provide the logistic, all the staffing and so on.
Most importantly, my office, the Office of the High Commissioner for Human Rights, was created in 1993. It currently has about 850 staff members all over the world. We have evolved from historically a very normative office, dedicated mostly to development of norms and standards, into in recent years a much more operational office dedicated to the idea that starting with the Universal Declaration of Human Rights, we have done actually a pretty good job articulating the normative international human rights framework, and we have done a mediocre job at implementing even the most basic of these rights. This is an era of rights implementation, and I believe the high commissioner has to be in the lead in promoting the implementation of rights and protecting against the grossest violations.
So this is who we are. I'm sure in this well-educated audience -- I didn't have to say that, but I want to refresh your memory so that I don't get burdened with a lot of the genuine complaints I'm sure you may have about the workings of a system in which I don't have either a role to play or much influence; that is the work of the council.
Now, we are, as I said, operational in several respects. One is we have some control, not total, in human rights presences in peacekeeping missions, and these are not insignificant. I just came back from the Democratic Republic of Congo in which inside MONUC, the U.N. mission, there is about 150 human rights officers. Now, they have a dual reporting line. They report to the SRSG, but they have a dotted reporting line to me, which means that we provide the doctrine, the guidance, and we operate in peacekeeping missions everywhere on the principle of public reporting of the results of our human rights monitoring, which was not an easy policy decision to have in place. It's now firmly in place, and I advocate for the maintenance of this policy at all times. I think it's critical that we speak out publicly on the result of our monitoring efforts.
We also have some self-standing OHCHR offices. I think one of our -- our largest one probably is in Nepal, where we are actually the largest U.N. presence. I think it's unprecedented for the United Nations to have its human rights presence, its flagship. We're also present at -- we've been for a long time in Cambodia and in Colombia, and more recently Guatemala, Uganda. We do very good work, particularly in the north. And we have signed recently an MOU with the government of Bolivia, where we will be imminently opening an office.
FEINSTEIN: Thanks you. That's a great overview.
Well, as you indicated, when I got a call from one of your colleagues about your interest in coming here, you said you wanted to talk about the responsibility to protect, the idea that was endorsed at the World Summit in September 2005. I think it's very interesting that you've taken such a personal interest in this. It's not automatic that the person in your job would find this to be so important.
So, you know, from where you sit, what is the significance of this -- you've called it a milestone. You said it's as important as Nuremberg was to the development of international criminal law. Tell us why you think that this is so significant.
ARBOUR: Well, I think it's very significant, although it's still very much a work in progress. There's a lot of calls now -- since the outcome document that you referred to, in the World Summit in 2005 -- there's a lot of call now to so-called operationalize the doctrine. And I'm saying, well, let's just take a step back and make sure that we've conceptualized the doctrine appropriately before we start agitating. And I'm not sure we're there yet. And in fact, I look forward to this occasion to try to unpack a little bit the language in the summit document.
Now, we all know where it comes from. I think it's the child or the grandchild of the right of humanitarian intervention doctrine. Now, the critical difference, it seems to me -- and there are many differences, doctrinal differences, but the critical one is the distinction between a right and a responsibility.
The right of humanitarian intervention by definition is discretionary. The right holder can waive its exercise of the right. So it's very focused on the intervenor, and it's profoundly discretionary. The responsibility to protect, in contrast, is a responsibility, so presumably it carries a set of burdens or obligations. So states and the international community have become duty bearers, and the focus, of course, is not on those who have the so-called right to intervene, but on those who need protection. And I think there are a lot of implications for that.
It says a lot of other things. We've heard a lot about the erosion of the concept of state sovereignty. I think this erosion had started quite a long time ago. Certainly the two ad hoc tribunals, I think, were a major step in -- if one calls it an erosion. I don't think it's an erosion. I think, in fact, it's a full and much richer understanding of what state sovereignty is about, moving from the concept of a shield against accountability and scrutiny into this bundle of responsibility that comes with the privilege of governing.
What it doesn't -- there are lots of things it doesn't say. First of all, it doesn't say what kind of responsibility it is, the responsibility to protect. Is it a moral responsibility? Is it a political one? Or is it a legal one? And I'm going to suggest to you that it may come as big news to some, but in certain aspects of its configuration, it's actually a legal responsibility. I hope this won't come as too much of a surprise for those who embraced the doctrine in New York in September 2005 with such enthusiasm when they realize what they may have been buying into, but I believe that's the case.
Now, there's also a lot of things it doesn't say, but the fact that these things are not inside the responsibility to protect doesn't change the reality that there is a responsibility. For instance, as you know, it focuses on responsibility to protect against genocide, crimes against humanity, war crimes and ethnic cleansing.
And in the outcome documents, all member states said loudly, "We accept that responsibility." Well, that's really good, but they have a lot of other responsibilities that they don't have to accept, they have them. They have responsibilities coming from their ratification of treaties, for instance. So they don't have a responsibility only to protect their populations from these four listed crimes. These ones create the environment in which that particular doctrine is activated, but I think we need to be very clear that it's not meant to relieve member states of their responsibility to protect their population from disease, from starvation, famine, all kinds of other ills that, in a sense, attack the right to life in as direct and catastrophic ways in many instances.
FEINSTEIN: I'm sorry. It does or does not go to those issues?
ARBOUR: Well, the -- in my view, the fact that the doctrine is focused -- or we could ask ourselves, "Why is it focused on genocide, war crimes, crimes against humanity, ethnic cleansing?" I think there are several plausible explanations.
One is it's because these activities are typically state-sponsored or state-tolerated. Of course, states have a responsibility to protect their populations against natural disasters, but in a sense it goes without saying, or so could be the explanation as to why it was not made explicit. So presumably, it's meant state responsibility in circumstances where we suspect that these ills or these evils will be perpetrated either with the collusion of the state or to its impotence, which is why we then come to the responsibility of the international community if a state is unwilling to unable to discharge its own responsibility. But I say states have a lot of other responsibilities that this doctrine does not really bypass.
The other reason, frankly, where I believe that it focuses on genocide and war crimes and not on starvation, famine and disease, is because of the long-standing Western preference, if not bias, for civil and political rights over economic, social and cultural rights. So I don't want to discredit the doctrine, but I want to say I hope it's only a first step in the articulation of a bundle of protective measures that states have a responsibility to discharge. This is only the first one.
Now, the other thing is, I think we've jumped very quickly to one phase of protection, of responsibility to protect, which is the one that attracts the most attention, which is the responsibility to react and to intervene, particularly through military intervention. But I think we have to step back and ask ourselves, well, what is contained in that bundle of responsibilities? And there's a lot of very good thinking on that in the International Commission on Intervention and State Sovereignty, the Canadian-sponsored initiative, whose report was so untimely released that it took some time before it gained currency again.
But if you go back to that document, the responsibility to protect contains the responsibility to prevent, to react and to rebuild. And as part as -- to rebuild is very explicit, in my view, and I'll come back to that -- the responsibility to punish. The reason I say it's very explicit is because the legal core of the responsibility to protect is the genocide convention, and in that document, there is no ambiguity about the duty, responsibility to prevent and to punish, and I think we have to be very clear that this is now part of the arsenal of this doctrine.
Now let me say one more thing. If we were to do a little bit of institution-building in the U.N. by intelligent design, which would be unprecedented in institution-building, here's how we would institutionalize -- not operationalize, but institutionalize -- the responsibility to protect.
The duty to prevent should be -- should sit, should have its core function sit in the Human Rights Council. The responsibility to react should sit or have its core functions in the Security Council -- and then I'll put a footnote -- possibly by default, in the General Assembly, if the council proved itself unwilling or unable to do its part. But that's just a footnote.
And then the responsibility to rebuild and to punish would sit in the International Criminal Court and/or other similar bodies, because it so far does not occupy the punishment field exclusively, and of course in the Peacebuilding Commission. This would be the perfect institutional framework to unfold -- to see unfold the responsibility to protect.
Unfortunately, we don't live in a quite perfect world, and I think you'll see all these institutions tripping over each other, doing bits and pieces, with not a great deal of intellectual coherence.
FEINSTEIN: That's actually very interesting.
There's so much to respond to. Let me ask a little bit more on the implementation side, since that's how you ended your last comment.
So the responsibility to protect is, as you pointed out, often seen as, you know, or -- preventing mass atrocities is often seen, particularly in this country, as a choice between doing nothing and sending in the Marines. And I think your point is, there's a huge space in between that needs filling. Can you tell us a little bit about how you would fill that space?
When we met back in 2005, at the request of Secretary-General Annan, you were doing your own review about how you would reform your office, as other offices were doing the same. What do you see as your office's role and other institutions of the U.N.'s role in terms of prevention? And here I mean not just in the reaction phase but really preventing, working with the governments, not necessarily only against them, to avert these kinds of mass atrocities.
ARBOUR: I'll talk about my office, and I -- and maybe about the U.N. sort of more generally.
In the case of my own office, if my institutional model is correct, the Human Rights Council and the human rights community, international community, would have a lead role in the prevention side. And it seems to me that there's no doubt that human rights violations, chronic ones and certainly acute and increasingly gross violations, tend to be a pretty good indicator of possibly worse things to come.
So I would hope that my own office, through its field presences, and the Human Rights Council, through a kind of better understanding of its role in life, if I could put it this way, would try to focus a lot of its energies on early detection.
And we're going to have some mechanisms to do that in the council. As you may know, the council will equip itself in the course of next week with this thing called universal periodic review, where all member states will be reviewed for their human rights compliance. There are lots of initiatives that can be put in place where indicators of severe deterioration of the human rights climate could be used to start detecting whether in fact we're not moving into conflict, internal conflict, with these genocide, war crimes, crimes against humanity -- almost inevitable consequences of conflict.
So I think, and I would hope that OHCHR through our field work, and so on, not so much in our presence in peacekeeping missions, although as we know, the best indicator of conflict is whether there was one in the previous five years, so I think even in peacekeeping missions we can see a lot of indicators of further deterioration. But I think we need clarity about the activities that we're conducting. Historically, we've done a huge amount of so-called technical cooperation work, capacity-building. And it seems to me it is irresponsible to build the capacity of a state whose human rights deficits are not based on a lack of capacity but on a lack of political will, because then you're just equipping governments to do bad things. So you have to have a lot of diagnostic clarity about the nature of the human rights deficit. All this I think is part of this exercise.
And I'd like to say just one more thing about the U.N. This responsibility to protect -- as you well know, there are two key paragraphs in the Outcome Document. First, the states accept their own responsibility, which is great, but doesn't add anything because they have it anyway. They certainly had it all under the Genocide Convention and under genocide as customary international law. So it has wonderful political resonance to say we accept a responsibility to protect our people from genocide and crimes against humanity, but in every sense of the word, it adds absolutely nothing.
So the real added value is in the international community's obligations, I think, that are articulated there. And there, it's quite interesting. The first part says that the international community, "through the United Nations," otherwise not defined, accepts -- not accepts -- also has the responsibility to take every diplomatic, humanitarian and other peaceful means to protect people from these genocide and war crimes. Now, I would argue that this responsibility is concurrent with the responsibility of states. It's -- first of all, it's articulated as: The international community through the U.N. also has the responsibility to protect through diplomatic, humanitarian and other peaceful means. Not coercion. And I say this is a concurrent responsibility. You don't have to wait for a state to be in default; we have that responsibility.
Now, this begs the question, who is the U.N. in that context? Is it the U.N. in its intergovernmental machinery -- Security Council, General Assembly, Human Rights Council -- or does it include the secretariat and the specialized agencies? I think an interesting question.
The second part is the taking of collective action in a timely and effective fashion through the Security Council. Very interestingly, it's not phrased there as a responsibility. It's says "we are prepared to." And that, I say, is a default responsibility; it's only when states prove unwilling or unable -- or unable to protect. But interestingly, it's the only one that is not phrased as: the Security Council has a responsibility. It says: we are prepared. This goes back, it seems to me, to a more discretionary framework.
So I think all these questions still need to be explored.
FEINSTEIN: That's very interesting. Usually, when I do the Rotary Club version of this talk, I actually emphasize the first part of the responsibility to protect as the most important. So it's striking to me, from your perspective and background to say that as a legal matter, you don't feel that the first part of the responsibility to protect, that is the responsibility on states to prevent their own -- people within their own territories from grave harm, that that's not a new obligation but just a restatement of a preexisting one.
Just one more question about this, and then we'll open up to our colleagues.
So you and I, and probably most of the people in this room, think that the responsibility to protect is an interesting and important development. It would seem that in September 2005, the -- you know, the General Assembly agreed as well. But there seems to have been some serious backtracking at the U.N. for a variety of reasons -- maybe because people didn't realize what they signed up to. Iraq is certainly a big factor.
Can you talk to us a little bit about how you see the current state of this norm and what are the political obstacles within the Security Council to getting broad support for trying to operationalize it?
ARBOUR: Well, again, I have to take your question one step back because it seems to me that even though the document doesn't speak of a responsibility when it comes to the Security Council, there's been another legal event -- I think a pretty Earth-shattering event -- that I think we would be very well advised to take into account, and it's the recent decision of the International Court of Justice in the case of Bosnia against Serbia, in which there were accusations on the part of Bosnia that Serbia was responsible under the genocide convention for failing to prevent and failing to punish. Now this is very illuminating because the responsibility to protect, as I said, has its core legal content in the genocide convention. It's a responsibility to protect against genocide. That's -- so let's just take it at that and never mind crimes against humanity and war crimes for the time being, but it seems to me, it's the same argument.
So the legal aspect of that responsibility, which is otherwise moral and political, is in the genocide convention. Well, actually if you look at what the International Court of Justice has to say when it found Serbia responsible for preventing genocide, not in its own country, in another country, I think it's pretty illuminating for the burden that it imposes on the rest of the world to prevent a genocide in one country. You might ask yourself, well, how did Serbia get itself in that predicament of being held responsible for preventing a genocide outside its territory? What were the parameters that the court used to come to that conclusion?
And I have to say, if I was a permanent member of the Security Council, I would ask my legal advisers whether by analogy it's telling me something, because if you look at the reasoning of the court, first of all, they said, the obligation to prevent genocide is not an obligation of result; it's an obligation of conduct. So you can't say, well, there's nothing I could have done anyway because that's not the point. It's an obligation of due diligence. You have to take all reasonable means that might have prevented the genocide. This is a very interesting test, and therefore, causation is not in the landscape. It will not be enough to say, well, it wouldn't have made any difference, such as in Rwanda, we could not have deployed on time. All right, well, that's not the point. The point is: Did you exercise every due diligence?
Now, again, what country is being called upon to discharge that responsibility? And I don't want to be anymore lawyerly than is necessary, but it's the same concept in a sense that in tort law you apply to a duty of care. And again, think of the Permanent 5 members of the Security Council. If there are allegations of genocide taking place somewhere, the court said basically there are three tests of -- that when your responsibility is engaged: proximity, knowledge and influence.
Now, proximity, of course, in the case of Serbia was geographic proximity, but the court said it's geography and all other relevant links that you might have with the territory where it's happening.
Knowledge, the court said, it's whether you have actual or constructive knowledge of this impeding disaster. Impeding? Unfolding disaster.
And the third one, very interesting, is influence. What is the likely -- the likelihood that you could have influenced the course of events?
So I would have thought that before exercising a veto in the Security Council that could block international action that might have the result of preventing genocide, the veto holders should think very hard about their potential liability under the genocide convention under the tests articulated by the court, all of which I think is really a lot of food for thought in that political arena.
FEINSTEIN: It is. And it certainly -- that would not be the interpretation, probably, of U.S. State Department lawyers, and they would -- (laughter) -- try very hard to argue against the obligation that you talked about.
Before I broaden the conversation to our colleagues, just a question on another matter -- and I'm sure it will come up as well -- you made a point of making it clear that you are not responsible for how the Human Rights Council conducts its business. You're well aware that in the American context, somehow a barometer of the success of U.N. reform is what happens in Geneva. So, you know, given the record of the past year, the good, the bad and the ugly, given your expectations in light of the compromises to get to where we are, give us your assessment.
ARBOUR: Of the council?
ARBOUR: Well, I wish I had been here two weeks from now when the council finishes its institutional reform exercise, because we're still now looking in a slightly foggy crystal ball as to how the council will all fall into place.
Let me say a few things. The criticisms of the Commission on Human Rights, I think, were very legitimate in recent years. We have conveniently forgotten the pretty extraordinary work that the commission did in history. First of all, it's the institution that produced the Universal Declaration of Human Rights, a document, frankly, that I think you'd have trouble adopting by consensus today. And if it -- even if it had only rhetorical importance, I think it's one of the great documents produced by the international community ever. That was produced by the commission.
If you had heard the president of Chile address the council last week, you would have been like we all were in the room -- extremely moved by her very personal testimony about the role that special rapporteurs in the commission played in the dark period of Chile's history and in her personal life.
So -- and there's -- I won't even call it anecdotal evidence; this is, I think, too weak an expression to describe the very rich history during apartheid as well, the role that the commission played.
Where it failed, where its credibility started really being eroded is under accusations of selectivity, double standards, politicization. These were the buzzwords. What the council -- the council has now been created with the potential to remedy that in a very substantial way, but there's no guarantees. I think we have indications both ways about the progress being made in the council.
The most dramatic change between the commission and the council is already visible, in my view, and it's the frequency of meetings. The Commission on Human Rights met six weeks in the spring every year, and that's it, and the rest of year -- although it theoretically could hold emergency sessions; it had done so very, very rarely in its history. The council now is required to meet at least 10 weeks in a year, and it has already met in September, November -- last year -- in June, September, November, March, and it's meeting again. The chances of turning a blind eye to catastrophic human rights violations are a lot slimmer when the council is in full session and public opinion is pressing on its door, so that's already, I think -- is going to be a revolution in the work of the council.
The second one is the system of universal periodic review, which addresses directly the question of selectivity and double standards. How exactly it will shape up will be decided by the council in the course of next week. Negotiations are still under way.
But the emerging features, I think, are that the council will take up about -- approximately 50 countries per year in a public about three-hour session. There will be huge input by NGOs. The bulk of the presentation of the file or the construction of the file will be done by the High Commissioner's Office. So we will have a forum where, give it a few years, we will hear about countries that were never on the radar screen because they were never acute violators and were never in the midst of armed conflicts, but have been chronic, perpetual violators on human rights on, for instance, widespread discrimination, racial discrimination, discrimination against women. So we will have an opportunity now to scrutinize everyone, and I think it will defuse this accusation of politicization.
Quite obviously, the feature that was perceived, certainly in this country and elsewhere, as the biggest metaphor, in a sense, for the council's politicization was the fact that Israel and the occupied Palestinian territories were the subject of a permanent agenda item on the agenda of the council -- of the commission. The council now is also in the process of designing its agenda, and not surprisingly, there have been a lot of discussions and negotiations over the entry of any particular situation an agenda item. I can't predict what the decision will be. I think it would be very surprising if this agenda item disappeared altogether. It may be reconstituted with a terminology that might be seen as more or less offensive. I don't know how it will play itself up, but I think the indications, if you look at the activities of the council in the course of this year, is that it's not showing any indication of wanting to release its historical focus on this issue. This, I think, will not be well-received here and elsewhere. That's the reality of the council.
Now, I think it would be -- you know, it cannot be perfect on all accounts. And I would certainly urge that we keep a very balanced evaluation of the work of the council, and if some aspects are seen as regressive or certainly not progressive, I think one has to weigh that against other features that in the long term may serve the promotion and protection of human rights very well.
So, as I said, unfortunately, I'm commenting on the basis of considerable speculation about how it's going to shape up. But I think we should do a sophisticated analysis of the institutional features and not jump to premature conclusions to write off this institution, which as I said, could, if we push it in the right direction, have a very important role to play in the responsibility to protect prevention system.
FEINSTEIN: That's very interesting. And our Congress is very good at sophisticated analysis, so no worries! (Laughter.)
All right, let's open it up to our colleagues.
Yes. And please identify yourself.
QUESTIONER: Roberta Cohen from the Brookings Institution. Thank you very much for your comments. I really found them very heartening.
I wanted to ask you about the relationship of the Office of the High Commissioner to the humanitarian part of the U.N. Increasingly, as you know, humanitarian organizations in the field have been focusing on the protection of the physical safety and human rights of people caught up in emergency situations, whether internally displaced persons, other affected civilian populations.
And many of these organizations, the staff, if you're in meetings with them, they will always urge that the Office of the High Commissioner for Human Rights play more of a role in this. Specifically, they will ask: Could OHCHR become more involved in the formulation of what protection means operationally? Can they become more involved in the decision-making of the Interagency Standing Committee, in particular, the Protection Working Group, where the integration of human rights into the work of the Interagency Standing Committee is very important?
Or they will say: What about an operational field presence? Could it be more systematic, that OHCHR would be out more in these emergency situations on a systematic or expected basis? Or could they do training of U.N. staff in human rights protection?
So I wondered how you see the relationship of your office to what is going on in the field, which in some ways is determining what R2P means right out there, right now, before all the formulations and theorizing has taken place, but they're right there on the front lines.
And I wonder what steps you think could be taken to make this a more effective collaboration. Thank you.
FEINSTEIN: Thanks. And Roberta, of course, is very much a pioneer on the whole idea of sovereignty and its connection to responsibility.
ARBOUR: We of course feel institutionally maybe the closest in the U.N. to our humanitarian partners. I mean, in many, many ways we see the world in very much -- through the same lenses and -- now, they have a much longer history of being operational than we do. And they have a -- I have to be frank -- they have a much larger capacity to generate the support for their operations, including the financial support, than we do.
Let's put it this way. They have a much better product to sell than we do, in their protection framework.
So when they say they'd like us to be a lot more present on the ground -- in lots of cases, I couldn't agree more -- we just can't get there. I mean, we don't typically -- unless we're coming in through a Chapter VII peacekeeping mission, we can only get there if somebody lets us in. And there are lots of places, I'll tell you, where our chances of getting a foot in the door are nonexistent, while humanitarians have a much greater capacity to engage with governments. So that's part of the reality.
I have to say I've given up on the metaphysical protection debate. First of all, I just don't get it. I've yet to sit in numerous interagency meetings where I can even get the question, let alone contribute intelligently to the answer.
I -- and I have -- I think I've given it my very best shot. I -- it's beyond me. It is so abstract, ranging from a meeting in which it was announced to me, as though this was a major scientific discovery, that the difference between human rights and humanitarian actors is that the humanitarians protect people, and we protect rights. That's a good one. (Laughter.)
(Chuckles.) Anyway, I don't -- so I have actually pretty well given up on trying to bring any kind of conceptual or intellectual clarity to that. I think, frankly, we'll do better if we just start from the bottom up and work in the field in -- you know, through these cluster initiatives and other efforts to maximize what in any case -- if you look at Darfur, I mean, early on in Darfur, when I first arrived in my post, I really believed that the only hope at that stage -- I still believe it's probably the only hope -- is through a kind of concept of protection by presence, just try to flood the country, not with people armed, just with more and more NGOs, who are, of course, the core actors in Darfur. I mean, for all the talk about the U.N. and so on, there are 10-to-one NGO, humanitarian and other types of actors.
So I felt that, you know, around these IDP camps, at 6:00 at night the world went home and terrible things happened. You didn't -- of course it would be great to have 20,000 troops on the ground. It's long overdue. But between having inadequate armed presence and having massive civilian presence, I thought this was doable. So I think we have to continue our efforts and our dialogue.
There are circumstances in which the only hope is for humanitarian intervention, and the human rights added-value is not made possible by the government. But I have to say, when you unpack the entire human rights package, including the responsibility to punish, in our insistence on -- when we are actors -- in trying to alleviate the suffering by supporting peace negotiations, again we are not even inside the system always a particularly welcome addition when we advocate for no amnesty on these issues.
Again, let's be very clear, the Genocide Convention requires punishment. And I'm still amazed at how difficult it is to promote that concept, not to those who are immediately at risk of being called to account, but to those who are trying to construct a so-called sustainable peace and who are hugely adverse to the kinds of tools and means of intervention that we bring to the table, that are not always the most popular ones. They're very challenging. It's very hard to advance the peace and the justice agenda without putting them in competition with each other.
I am a huge opponent of the sequencing theory; first of all because if you sequence, I can tell you which one is going to come first every time. And I believe it's a perversion of justice to make it subservient to political interests. It's unacceptable domestically; it's unacceptable internationally.
All this is part of our discourse with our humanitarian friends and colleagues, which is -- it's a very friendly discourse, but at times we interface differently.
FEINSTEIN: All right, very good.
And please keep your questions brief and wait for the microphone. Yes, sir?
QUESTIONER: Yes, David Gompert from RAND, RAND Corporation. I'm neither an international lawyer nor a human rights specialist. My field is national security.
I'm less sanguine than you are about the responsibility to protect being a work in progress. I hope you're right, but I see it as a principle very much in jeopardy, because in Darfur -- and I'm not about to make an appeal to you, of all people, about Darfur, so that's not my point. But in Darfur we have a government that is complicit internally and defiant internationally. And if that doesn't endanger the responsibility to protect at this very delicate time, I don't know what does. It does raise the question about the capability to protect. And here I am talking about the reaction if it can't be prevented and if you can't wait until punishment.
It seems that those that have the capability to protect can't be depended upon to use it, and those that seem to be inclined to use it don't have much capability to do so. Again, that's on display in Darfur. It doesn't take all that much, because usually -- not always, but usually -- the killers are not very good fighters and they're not going to stand up against against combat forces.
But it does sort of raise the question of whether we in the West are doing everything we can to help the Africans build up, you know, serious humanitarian intervention capabilities on a multilateral level, not ordinary peacekeeping capacity, but intervention capability. Their charter provides for it. They do not have the capability. We don't seem to have the will. So it strikes me that that may well be the solution.
I'd appreciate your response.
ARBOUR: Well, I have to say I agree entirely with that, not only in principle, but in reality. If we look at the current composition of sort of deployment of peacekeeping operations for major deployments in Africa, in essence, a lot of the troops would come from the continent in any event, and from a few sort of regular contributors, such as Pakistan, Bangladesh, Nepal and a few other countries. So it makes sense from every point of view to develop an AU -- a real AU capacity.
The problem with Darfur, I think -- there are lots of problems with Darfur -- but in the context of this debate, is that if we're looking at the responsibility to protect, we would have to have looked at it, have the doctrine be fully conceptualized and operationalized at the outset. It's as though -- well, it's the same thing that happens if you're looking at sort of a terminal patient but you don't analyze all the deficiencies or preventive medicine, and so on, that got you into this predicament, and then you find your doctor not particularly helpful to save life.
Well so in Darfur, it's pretty clear that this doctrine has a lot of limitations because we're in this absolutely critical phase without having put a lot of the proper steps in place earlier on. It will be historically, I think, every interesting to go back into the period prior to the peace agreement in the South and, in fact, the timing of the emerging crisis in Darfur, and the fact that I think we -- we collectively -- made political choices to favor the peace agreement in the South while there might have been the possibility of an early intervention in Darfur that might have changed the course of events. That was a political judgment, but I believe it was a conscious one.
But now that we're into the reactive phase of the doctrine, I think we have to take all responsibilities. It seems to me that it's a pretty unanswerable case that the government of Sudan is presently, and has been for a very long time, either unwilling or unable to protect its population in Darfur. If that doesn't meet the test of the deficiency of will or capacity, I don't know what it's going to take to see a government that is not delivering, for whatever reason. And I don't think we have to pass judgment. We don't have to speculate as to whether it's a deficit of will or a deficit of capacity; the reality is this is a government that's not protecting its population.
So at this point, I would have thought that it triggers the international community's response except, as I stress, in the way the doctrine is formulated when it comes to the Security Council, it's still optional. I don't think it's optional under the Genocide Convention, and I think if it includes very coercive measures -- and again, let's not jump immediately at military intervention. There are several coercive measures. The Security Council activated the International Criminal Court in Darfur. This was a very significant gesture for a council whose members, several of them, had a lot of ambivalence about the ICC. It was the right thing to do. It triggered the responsibility to punish, and to use as a deterrent effect the threat of punishment. It was all the correct thing to do. But now where's the muscle to see through the commitment to using personal criminal accountability in Darfur when there are two arrest warrants? And one doesn't hear a lot of public appeal for their implementation.
FEINSTEIN: All right, since we're short on time, I'm going to try to take two questions at once.
QUESTIONER: Thank you. Ken Bacon, Refugees International. I hope you do come back in two weeks after the council meets or any other time because this has been great.
The Universal Declaration of Human Rights guarantees everybody a right of citizenship, and yet there are 11 to 15 million in the world who aren't citizens of any country. And there's a big group, for instance, in Nepal, where you have your largest office, Bhutanese who are neither citizens of Bhutan or of Nepal.
I wonder if your office is addressing this issue, and if so, how?
FEINSTEIN: We have one more right here.
QUESTIONER: Dinah Shelton, George Washington University Law School. Hello and welcome.
You mentioned at the end of your comments on the Human Rights Council the need to push it in the right direction, and that, of course, will be done by NGOs, it'll be done by a few governments and maybe occasional enlightened press. But if we look historically at the work of the commission, many would say that the greatest push came from the subcommission, which no longer exists, and even though it was at times only theoretically made up of independent experts, other times it was made up of real independent experts.
Do you see any prospect for something like an advisory council or reconstituted commission coming out of the council's meetings? And if not, how much scope is there for your office to take on some of the role that the subcommission played?
FEINSTEIN: And if you can try to answer these questions briefly, so I can squeeze in maybe one or two others before we have to end, with apologies.
ARBOUR: Yes. On this issue, again, I wish I would come after the council finishes because it's very much on the reform agenda of the council. They have to look at the subcommission. I believe on the basis of what I see circulated that the subcommission will disappear as a subcommission, but will be reincarnated in a sort of smaller, probably a more pointed way, doing work not very dissimilar to what the subcommission was doing. So as a mechanism, it will not entirely disappear. It will be -- I think the idea was to rein it in a bit, not necessarily a good thing, but it -- and again, these things then take a life of their own. My own office, of course, has grown considerably, including in our research capacity, and so we are able to take a lot of initiatives and advance on some normative issues.
You know, when I said we've entered the era of implementation, I don't want to completely downplay the significance of the normative role of the council. But when I talk about pushing the council in the right direction, if I'm correct, that we have in the U.N. the capacity to have these institutions line up along the components of the responsibility to protect, even though that may sound very counterintuitive it might make sense to try to disengage a little bit, the Human Rights Council, from the hotspot crises that are already in the Security Council, where the added value of a non-coercive body is marginal. And while the council is really struggling over Darfur and other kind of flaring international or internal armed conflict, nobody has the jurisdiction to pay attention to these other gross human rights violation. I think the case of Myanmar is a good example, where the Security Council bumped it back to the Human Rights Council, but at the same time, public opinion is telling the Human Rights Council, why aren't you doing anything about Darfur?
So it may be a bit counterintuitive to say, well, you could afford to stay away from these raging conflicts where you may not add all that much, but your responsibility is to be where nobody else is in the U.N. system.
FEINSTEIN: And Ken's question.
ARBOUR: Oh, yes. In our office in Nepal, I'm afraid, we're not very engaged on the Bhutanese refugee issue. I think historically, UNHCR has attempted to play a role. We're very aware of it, but we are now, I think, drowning in the conflict in the Terai and trying to support the kind of movement towards the constituent assembly and so on. So I don't think that we're --
QUESTIONER: Well, my question was more about statelessness -- (off mike) -- stateless --
ARBOUR: Statelessness, yeah. Again, I have to -- in the context of Nepal, or do you mean more generally?
ARBOUR: Well, certainly more generally, I believe that the responsibility to protect is not anchored in the responsibility of states to protect their own citizens; in fact, there's nothing in the language that suggests that. It talks about protecting their -- I think the language is "their population." But I'm certainly always very careful in never articulating states' responsibilities to be reduced to protecting their citizens. I think states have a responsibility to protect all persons under their jurisdiction and/or their effective control, which I think is language that is very useful to use in this country regarding the responsibility of the United States and addresses the question of statelessness.
FEINSTEIN: Let's see if we can squeeze in one more question.
QUESTIONER: My name is Stella Ngumuta from the Development Executive Group. My question goes back to the genocides in Rwanda and Bosnia. What are the two main lessons learned from those genocides that will strengthen the role of the High Commission in preventing future mass atrocities?
FEINSTEIN: Not an easy one to answer.
ARBOUR: Well, when you speak about lessons learned, I assume you mean useful lessons, not just -- (laughter) -- the -- I think -- because I would have said the first lesson learned is we should stop saying "never again." It's so clear that we can't deliver on that ambitious commitment, that maybe we should use language that is more reflective of our collective shortcomings.
What are the lessons learned? Well, again, I would say that we -- it's not that we didn't know. I think maybe the lessons learned is that we did not have then -- and maybe with the responsibility to protect, we could develop a compulsory framework for action as opposed to -- and that is part of this alleged erosion of state sovereignty and so on, which I think is a misqualifier -- but a framework that would trigger not just a political or moral responsibility to act, but a legal one that carries legal consequences, such as an obligation to compensate and offer reparations -- legal, not just political and moral. And maybe we are getting there in having laid the foundations of that doctrine, because these are two cases where I think that it is not credibly arguable that we could not have discharged what the International Court of Justice called this obligation of due diligence.
And it is useless to discuss whether -- what it is that we could have done that would have avoided it altogether, because that's not he point. The point is, did we meet an obligation of due diligence? And the answer is clearly no. And will we in the future? No, if it's optional.
It's the same thing -- I just came back from the DRC, where the extent of sexual violence is beyond anything I have imagined. And I briefed the Security Council on it last week, and I said it is crystal-clear why it's happening. It's because it's permitted. There's no other reason. It's happening because it's totally permissible. And I think the same thing can be said.
So I think we have to move to a kind of framework that -- I believe in law; that won't come as a big surprise to you. And I think the recourse to the articulation of legal -- binding legal obligations that carry legal consequences -- personal criminal liability is a huge step in the right direction, but I think also obligations to compensate financially and otherwise -- that's the obligation to rebuild, which is part of the responsibility to protect. If this can all become part of an international legal framework, I think this may be something useful we would have learned.
FEINSTEIN: Well, I want to thank you for coming here. I want to open an invitation to you to come back in two weeks or whenever you'd like.
And I want to apologize to so many people who have questions, but we have a responsibility to end. (Laughter.) Many thanks. (Applause.)