At the ‘ACT Initiative’ Justice Conference, held at the Ramada Encore, Belfast,21/04/2012, one of the guest speakers was Brian Gormally. Brian is the Director of the Committee on the Administration of Justice, Northern Ireland’s leading Human Rights NGO. For over a decade before that, he was an independent consultant working mainly in the community and voluntary sector – specialising in Justice, Human Rights and Equality issues. He was Deputy Director of NIACRO for 25 years until 2000 – working with communities, alienated young people, ex-offenders and prisoners’ families.
He has published and presented extensively on Justice, Community Policing and conflict resolution issues – particularly on politically motivated prisoner releases, victims of terrorism, dealing with the past and restorative justice. He has been involved in international peace-related work in South Africa, Israel/Palestine, the Basque Country, Italy and, more recently, Colombia. He has also worked on a number of projects on equality and human rights with the trade union movement and on the Bill of rights with the NI Human Rights Commission.
Below is a copy of his presentation to the conference.
The relevance of human rights – Presentation to ACT Conference 21 April 2012
I want to talk today about the relevance of human rights – in general, how they are relevant to you and me as citizens – but in particular how they may be relevant to groups of people coming together to overcome the heritage of conflict and division, working for justice for their communities and seeking to build a new society.
What are human rights?
Human rights are a series of rights and freedoms that all human beings are entitled to. The concept goes back centuries but it was after the Second World War that they were codified in a series of international treaties at global and regional level, such as the Universal Declaration of Human Rights (UN) and the European Convention on Human Rights (Council of Europe).
Human rights work therefore relies on the standards of international human rights law to hold the state to account for abuses and to strengthen the protection and promotion of rights through the rule of law.
Note the emphasis on the state. At a legal level, the reality is that it is states that sign up to international human rights treaties and only they can be in breach of their obligations and so carry out human rights abuses. Except in strictly limited conflict situations, it is only states that can abuse human rights in the legal sense and so the focus of human rights work has to be on the state.
However, although it is true that the state will be the only source of the abuse of human rights in the sense of breaching treaty obligations, it is also true that the state must be the main, if not the sole protector of human rights. The state has negative obligations – not to abuse people’s rights itself – but also the positive obligation to protect the human rights of its citizens. It does this through the rule of law which itself requires the attributes of a state – legislature, courts and enforcement mechanisms with the legal monopoly of the use of force. In turn, the rule of law is about regulating the relations both between the state and people and between people and other people. So, in urging the state to apply human rights standards we are hoping both to reduce direct human rights abuses by the state and also to increase its effectiveness in protecting people from harm by other people. So, for example, far from being indifferent to the depredations of criminals, human rights practitioners claim a far more effective concern than verbal condemnation – an improved, more effective because human rights compliant, criminal justice system. The point here is that human rights and the rule of law can be seen as setting the framework for relations between people and people as well as between people and the state.
Furthermore, international human rights law purports to be a codification of the basic standards of human behaviour based on the “inherent dignity and … the equal and inalienable rights of all members of the human family.” (Universal Declaration of Human Rights Preamble) It is therefore a normative framework for all human interaction. Consequently, the obligation to uphold and promote human rights in a general sense is not restricted to states but applies to “every individual and every organ of society, [who] keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.” (Universal Declaration Preamble) So, promoting human rights standards as a basis for regulating the interaction between people is not just possible but is an obligation arising from international instruments.
The point here is that, although a human rights approach focuses on the state, it thereby works for the benefit of the whole of society.
Human rights and social justice
There are many definitions of social justice, but the way I see it is the attempt to use the principles of human rights – which are themselves the principles of justice – at the community level, at the level of everyday life. There are maybe two levels at which this can work.
First, in relation to the state.
We tend to think of the state as police, military, courts and prisons but it also includes the whole range of institutions with which we interact in our daily lives – schools, hospitals, local government, dole office and so on. These institutions have a major impact on the way we live and can certainly commit human rights abuses or fail to prevent them. There is a whole array of human rights in the social, economic, cultural and environmental areas which are directly relevant to community living. These are enshrined in international treaties but, unfortunately, not usually in UK domestic law. In passing, we should note that the advice on a Bill of Rights for Northern Ireland that the Human Rights Commission presented to government, and which has been cavalierly rejected, contained a range of important social and economic rights. However, that does not stop people from campaigning and using these rights as a guide and a set of tools.Some people reject the idea of social and economic rights because “elected politicians should be taking these decisions, not judges.” In fact that position completely misunderstands the nature of these rights. First, let us be clear that elected politicians are not elected dictators. They too are bound by the rule of law and the need to take decisions in a fair, just and equal way. The right not to be discriminated against, for example, regulates the way millions of government decisions are taken. Second, substantive social rights, like the right to education, are subject to the idea of “progressive realisation.” This simply means that government is under an obligation to work towards the full implementation of such a right, in the context of available resources and within a reasonable timescale. Sensible and just politicians have nothing to fear from social and economic rights – sectarian and corrupt ones might have.
In fact, the idea of working for social justice also recognises that the law is not enough. Human rights are based on law and legal action, especially strategic litigation that affects many people not just one case, can be extremely important. But there will also always be a need for campaigning – to change a bad law or decision, to force the implementation of legal decisions or to win the adoption of human rights standards by institutions. Organised citizens need to campaign for rights and justice – the courts will not hand them to us.
The role of human rights is to regulate power – at a community level as well as in those situations where the state has near total power over an individual, such as in a prison. As I’ve said, many institutions of state have power over us in our daily lives. Human rights can be used not just as a mechanism to challenge the exercise of power through the decision making process but can also be argued for as a structure or framework for making the decisions themselves. The Section 75 equality duty is an example of a formal framework that governs how decisions should be taken in conformity with the human right not to be discriminated against.
Power also exists within communities – and this is the second level at which social justice can operate. There may be power relations between different aspects of a community or between different communities defined by geography, religion or interest. The principles of human rights can be used as a framework for dispute resolution and for opening up access to social opportunities for deprived and marginalised groups. There is no prescription or handy tool kit for this but there are a number of projects that are working to explore how this can be done in practice.
Human rights and conflict transformation
Nobody here needs me to remind them that we experienced a thirty year conflict here in Northern Ireland. We might remember, though, that over 3,600 people died out of a population (in the North) of about 1.5 million. If that figure is extrapolated to Britain, it is the equivalent of 144,000 deaths – well over twice the number of British civilians that died in the Second World War. Extrapolated to the United States it would give a figure of 720,000 deaths – more than one and a half times the total US casualties in the Second World War or the equivalent of eight 9/11 attacks for each of the 30 years of the conflict.
Ten times as many people were injured as were killed – over 36,000. It is estimated that at least 20,000 people were imprisoned for offences arising out of the conflict. If we take people’s immediate families into account, that makes at least 300,000 people directly affected by the conflict. That does not take into account those forced out of their homes, intimidated, beaten up, harassed, made to leave their jobs and all those who lived in fear and constant tension.
The point I want to make is that human rights are absolutely central to the process of moving from conflict to a new society. We may, of course, have different views on the causes of the conflict. We may also differ about the extent to which human rights abuses by the state caused, or were a reaction to, atrocious violence committed by non-state armed groups. That they existed and needed to be remedied is, however, hardly to be denied – as well as armed groups desisting from violence and “going away,” the state also needs to be reformed.
From a human rights point of view, therefore, the first point of engagement with a violent political conflict is in relation to human rights abuses by the state. During a conflict, the human rights of all people must be defended and the state held to account for the abuses it practises. This intervention is not simply about the harm done to the direct victims of abuses but also about the corrosive effect on the rule of law. Abuses de-legitimise the state and, in particular, the criminal justice system, thereby weakening its ability to impartially uphold the rule of law and leading to a catastrophic failure in the state’s duty to protect its citizens. In the Northern Ireland conflict, abuses included torture, detention without trial, extra-judicial killings and unfair trials. The conflict also came about in a society in which there were permanent repressive laws, in fundamental contradiction to human rights norms, and institutional sectarian discrimination in political, economic and social fields.
A human rights approach to conflict transformation and peacebuilding therefore involves first the identification, investigation and accountability of human rights abuses, second a process of fundamental reform of the state and its institutions to prevent such abuses occurring again and third the construction of a society based on justice and equality in order to remove the causes and occasions of conflict.
This is not, of course, a simple process and in recent years the concept of transitional justice has been developed in order to describe, analyse and promote the series of judicial and non-judicial processes that are necessary to progress from a conflict involving violence and repression to a peaceful and stable society based on human rights and the rule of law.
The practical reality is that transitional justice as a concept, field of study and guide to action has come about from the attempts of human rights practitioners to develop the way in which an adherence to human rights law and standards can be deployed in a flexible yet consistent way in the transition from violence to peace.
The International Center for Transitional Justice says that:
“Transitional justice is not a ‘special’ kind of justice, but an approach to achieving justice in times of transition from conflict and/or state repression. By trying to achieve accountability and redressing victims, transitional justice provides recognition of the rights of victims, promotes civic trust and strengthens the democratic rule of law.”
The early release of politically motivated prisoners was, in my opinion, an important element of transitional justice. It was not “trading justice for peace” but represented a higher form of justice – one that helped lead to a transformation from violence and a fractured rule of law to a rights based society. Again, the reality is that, though the term was not then in use, many aspects of the peace settlement as represented in the Belfast Good Friday Agreement and subsequent agreements and developments correspond to the ideas of transitional justice. Some of these are:
• Strong mechanisms to enforce and build a culture of human rights (NI Human Rights Commission, proposed development of a Bill of Rights)
• The enforcement of equality measures throughout society, including state institutions (Section 75 equality duties, Equality Commission, proposed single equality act)
• Reformed and representative police service and criminal justice system (Patten Report implementation, uniquely powerful Police Ombudsman, less radical Criminal Justice Review)
• Practical parity of esteem and symbolism throughout the state structure (good relations duty, flags and emblems, language funding)
• Recognition and funding of victims organisations and establishment of a Victims Commission; limited compensation mechanisms
• Dealing with the past through Inquiries, inquests, historical investigations and prosecutions and wide discussion on the possibilities of truth recoverySo I want to argue that our peace process and the new society that we are trying to build are based on human rights. These are not for one section of the community but for all. If we want a peaceful society based on justice and the rule of law then a human rights based approach is the only way forward.
I hope I’ve been able to show in the last few minutes that human rights are relevant to everyone. Although they are focused on the state, their influence is felt throughout society and particularly in strengthening the rule of law. At a community level, human rights translate as the campaign for social justice. In the attempt to move from violent conflict to a peaceful society they are the absolutely essential underpinning of the process of transitional justice and the creation of a new Northern Ireland.
I welcome the initiative of this conference today and I’m sure that we’re seeing the development of a new focus for human rights work. As you continue in moving this work forward, you can rely on the support and comradeship of CAJ. I am confident that we can help each other in making human rights relevant in practice to our people and that we can work together in building the new society that we all wish to live in. Thank you.
