1 Critical Analysis of the Role of United Nation as a Third Party in Conflict Management Introduction

As stated in the Preamble of the United Nations (UN), UN is determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.[1] Since its establishment in 1945, UNs mission is to take part in conflict prevention in order to prevent or stop any forms of violence, either between states or internal conflicts. The UN has specialized programs and agencies tasked to prevent conflicts from spreading out by targeting not only the acts of violence, but the roots of these conflicts. These programs include United Nations Development Program (UNDP), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the United Nations Environment Program (UNEP), the United Nations Institute for Disarmament Research (UNIDIR), the United Nations High Commissioner for Human Rights (UNHCHR), and many others.[2] The UN successfully accomplished conflict management tasks in the late 1980s and early 1990s in Namibia, Nicaragua and El Salvador. In fact, an entire chapter of the Agenda for Peace of 1992 by the UN Secretary-General was devoted to conflict prevention. The report suggests that between the stages of conflict intensification and the policy actions which aim at ending them, a conceptual link must be created. Conflict prevention and dispute escalation prevention are included here. Regulation of the spread of violence if it happens is also included. And it was in these policy responses last segment that paved the way for conflict management.[3] The Hutus militia and the Tutsis Rwandan Patriotic Front (RPF): The Extremists A political conflict can occur between states, or within a state. It can be caused by various factors. A conflict can arise from political causes. It can also arise from ideological differences,[4] economic factors, ethnic or cultural causes,[5] social causes,[6] geographical issues,[7] and even psychological causes.[Burton] What happened in Rwanda was caused by an outcome of a political conflict between two groups that are attempting get monopolize the political power over the country. Conflict Management and the Rwanda Genocide Conflict management, according to Fred Tanner, Deputy Director of the Geneva Centre for Security Policy, is an approach that established the conceptual ground for direct outside involvement to check escalating violence by using peaceful or even coercive means, if necessary.[8] Aside from the incidents in Yugoslavia and Somalia, the Rwanda Genocide is one of the historical event which calls for the need to reassess the role of the United Nations in conflict prevention and conflict management. And this paper tries to discuss the episodes in the Rwanda Genocide that prompted even the UN to review its own concept on conflict management. The United Nations Assistance Mission of Rwanda It was the United Nations Assistance Mission for Rwanda (UNAMIR) that the United Nations tasked to aid the implementation of the Arusha Peace Agreement. Signed in August 4, 1993 by the government of Rwanda and the RPF, the Arusha Accords were meant to end the Rwandan Civil War. Hence, UNAMIRs task was to aid the peace process between the Rwanda government and the rebel RPF. [9] It was established by the Security Council Resolution 872 on October 5, 1992. The purpose of the UNAMIR is to ensure Kigalis security, monitor the ceasefire agreement between the two opposing groups, put up an expanded demilitarized zone and demobilization procedures, monitor the security situation on the final period of the transitional governments mandate until the election, assist with mine clearance and in coordination of humanitarian assistance activities and relief operations.[10] It was Jacques-Roger Booh-Booh of Cameroon and Lieutenant-General Romo Dallaire as the head of the UNAMIR. Belgian soldiers make up about 400 members of the troops. Note that Belgium has colonized Rwanda in the past. In matters of peace-keeping processes, the UN normally bans the former colonial power from taking position. The Rwanda Government and the rebels appear to follow the Arusha Peace Agreement. Both sides appear

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to be steadfast at creating the transitional government before the 1993 ends. However, the events that followed delayed the establishment of a transitional government. After President Habyarimana was inaugurated on January 5, 1994, major disagreements came between the opposing groups. There were warnings sent to UN alarming the assembly of the genocide that was about to happen against the Tutsi minority and anti-tribalist Hutus. The warning came three months before the mass murder. However, UN ignored these warnings.[11] (The warning about the forthcoming genocide and the perpetrators came from General Romeo Dallaire himself, cabled to the UN Secretary-General at that time, Mr. Kofi Annan. General Dallaire asked UN permission for an immediate action to intervene against the mass slaughter planned by Hutu forces. But the generals request was declined by the UN Department of Peacekeeping.[12]) This created confusion in the UNAMIR whether or not to use power. The orders issued by UN to UNAMIR were very limited. IN short, UNAMIR was rendered useless as the thousands of people are slaughtered. The UN failed to extend the UNAMIRs mandate to protect the people of Rwanda from the genocide. The missions job was limited to evacuating foreign nationals from Rwanda.[13] In fact, the peace -keeping force deployed by UN at the end of 1993, which is supposed to aid in the implementation of the cease fire between the two opposing groups, received severe criticism. There are countries that did not agree to send stronger force. One of these countries was the United States, ally of Britain.[14] The United Nations failed mission: The Report on the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda The council members of UN later acknowledged the failure of their mission to protect the peoples of Rwanda in a time where they mostly need it.[15] The UN even accepted the result of the independent inquiry lead by former Swedish Prime Minister Ingvar Carlsson on the actions taken by the UN in Rwanda. The report states UNs failure to ignore the warnings about the genocide despite the evidences that the mass slaughter will indeed happen. According to the report, UN failed in the 1994 Rwanda Genocide in many fundamental respects.[16] (The surprising thing was that no one in the international community anticipated the level of atrocity that happened in Rwanda.) With the evidence that was forwarded to UN regarding the organized mass murder that is going to happen, a contingency plan should have been made, as mandated by the Geneva Convention.[17] The report enumerates the reasons why UN failed: First, UN not only lacked the resources, but it also lacked the commitment to prevent the genocide from happening. The UNAMIR was also found to be not well planned in a way that it can respond to possible extremist act by either camp. The UNAMIR is also stated as a watered down version of the original plan by UN on the level of strength that will be deployed to Rwanda. [18] The inquiry points out that UNs Center for Human Rights and DPKO did not do adequate political investigation and analysis during the tensions. This resulted to the inadequacy of UNAMIRs mandate.[19] This is also why UNs peace-force in Rwanda was harshly criticized by the international community. Other failures that the inquiry notes were the implementation of the mandate itself, confusion over the rules of engagement, failure to respond to the genocide, inadequate resources and logistic, and many others. The report lead by Carlsson has deemed the UN useless during the worst moment in that particular episode in Rwandas history. However, there surely are factors that prevented the UN to come up with an in -depth analysis of the information on political situation in Rwanda, if the vital information are at UNs disposal. As we can see in the discussion that will follow, the UN is caught in situations where it even finds itself inadequate at some moments during the tension in Rwanda. On why the United Nations (and other international agencies) did not take further steps to prevent the genocide from occurring In the international community, no one anticipated the kind of horror that happened. It was only the only close observers that the genocide will certainly happen. The messages (that is, the warnings) remained unclear for the

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international agencies including UN. In a report headed by Howard Adelman et al, the vague messages are found in four areas: contradictions in the international system; the UN structure; attitude of senior officials towards messengers and inadequacies in the message sent; and interference.[20] UNs principle in neutrality when it comes to information gathering isnt necessarily applicable it times when international peace and security is under serious threat. This prevented the UN to arm itself with the capacity to collect and analyze information, which are vital when it comes to conflict management, during the tensions in Rwanda. [21] Another factor that caused UNs failure in conflict management in Rwanda is that it is trapped between disinterested nations, Tanzania and US. These nations, especially US, showed no intentions to share its collected and analyzed (a result of CIAs desk-analysis) information to UN.[22] The structure of the UN gives power to the Secretary General to give permission to UNAMIR for an immediate action to intervene in the plot for genocide in order to prevent it from happening. However, this power is not maximized in the case of Rwanda. One reason is that UN lacks staff. (Rwanda is only monitored by one person.) However, the deeper reason lies in the restructuring of the Secretariat since 1990. It is here where UN lost its capacity to collect vital information that can be analyzed and used as basis for making contingency plans. The distribution of the Secretary-General of his responsibilities to other agencies and departments also left the DPA, which should play an essential part in conflict management, lacking in logistics to carry out the task.[23] Another area that prevented the UN to take further actions is the messengers. The agencies that are associated with UN are reluctant to divulge information. That is to say, they are suspicious as to how the political and military information will be used. One thing more is the propaganda that the Hutu-dominated mass media spread. This made many, including members of UN, suspicious of the circulating information. Even the UN Secretary-General realized the disadvantage of not having the mass media on UNs side. Mass media might have been played an important source for information. As mentioned, UN did not expect the magnitude of the event that happened. First, just because genocide is rare, the UN concluded that it will not happen at that time in Rwanda. Second, it is confident in the Tsutsis, blind to the fact that these people are also miscalculating the conditions around them. (The Tsutsis also did not expect that the rest of the world will walk out from Rwanda the moment the Hutu extremists (militia, armed forces of the government and even civilians) tries to erase them from the face of their own country.[24] There are other factors that prevented UN from thinking clearly and thereby also preventing it from acting accordingly. First, the UN is completely confident of the Arusha Peace Agreement. Second, their sense of judgment was clouded by its past experience in Somalia. Before the genocide broke out, the situation in Rwanda is peripheral compared to many other global issues that the UN is paying attention to.[25] The Special Rapporteur of the Commission on Human Rights and other human rights agencies, as well as the RPF used the word genocide in the reports they made to UN. However, the ambiguity of the definition of genocide also created confusion on the messages conveyed to UN.[26] Another thing is that the UN seems to not learn from what happened in Burundi just six months before the Rwanda Genocide happened around 50,000 to 100,000 people were killed. Rather than considered as a political conflict, the conflict between the Hutus and the Tsutsis were considered only as a continuing ancient feud.[27] Conclusion and Recommendation Clearly, the United Nations failed in conflict management in Rwanda. This is because it lacks the vital factors in order to carry out the task. The UN sent UNAMIR to ensure peace in Rwanda. UN becomes too confident that no genocide will occur. The UN had received warnings about the Hutu-planned genocide, but ignored it because of a complex web of factors. In some of the situations, UN is caught between states, which are members of UN, which has their own motives regarding the situation.

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If examined, UN failed in information gathering that is very important in conflict management. The UN should reassess its structure in order to make collecting information and making in-depth analysis more efficient. (Remember that UN lost most of these capacities when it restructured its Secretariat.) This is in connection to the Rwanda Reports recommendation that the UN should improve its early warning capacity. And this can only be done through improving its coordination with various institutions. As suggested by the Report, the UN should improve its capacity to analyze and respond to information about possible conflicts, and its operational capability for preventive action. In this context, the report suggests that further enhancement of the cooperat ion between different Secretariat departments, UNSECOORD programmes and agencies and outside actors, including regional and subregional organizations NGOs and the academic world, is essential.

A Critical Assessment of the UN Human Rights Treaty Body Systems Effectiveness

Tom Innes Following the entry into force of the Convention on the Protection of All Persons from Enforced Disappearance last year there are ten UN human rights treaty bodies in operation, tasked with monitoring the implementation of their founding instruments. In practice, these bodies have three main tools that enable them to guarantee the protection of the rights granted by the treaties: overseeing the compulsory procedures for States reports on the status of their implementation; receiving and examining individual communications under optional protocol procedures; and issuing General Comments declaring their interpretations of various provisions of the treaties.[1] Additionally, various committees play central roles in optional inter-State complaint procedures established under a number of the core treaties.[2] Given that such procedures have never been used[3] (perhaps due to the political limitations inherent in any international inter-State complaint procedures[4]), this aspect of treaty enforcement will not be discussed in this paper; it is evident that despite the committees repeated requests for States to more actively involve themselves with treaty enforcement through such procedures,[5] they have had no success in bringing this to be. To assess the effectiveness of the treaty body systems in enforcing the protection of the human rights guaranteed by their founding treaties, this paper will begin by investigating the low compliance rate within the reporting systems before providing an analysis of the individual communication procedures, focussing particularly on the move from a restrictive stare decisis approach and on the development of interim measures. 1 - STATE REPORTS The reporting procedures are the only compulsory means of monitoring the implementation of the treaties by their States parties and are therefore of supreme importance. In spite of this, a considerable number of States have failed to submit their reports on time: for example, of the 167 States parties to the International Covenant on Civil and Political Rights, 63 States reports are at least five years overdue, of which 22 are initial reports[6] (half of those States are also not party to the Optional Protocol and so no effective means of monitoring their treaty compliance exists[7]); of the 187 States parties to the Convention on the Elimination of All Forms of Discrimination Against Women, 23 States reports are at least five years overdue, of which 11 are initial reports;[8] similarly, over a quarter of parties to the Convention on the Rights of the Child were overdue by at least five years with their initial reports and the submission rate is even worse for subsequent reports.[9] The average percentage of States parties with outstanding reports across the entire system in 2006 was a staggering 58%.[10] Additionally, a substantial number of reports that are submitted are deemed to contain insufficient information thereby negating their usefulness.[11]

Even should the political will to comply with the reporting obligation exist within a State, the fact is that compiling reports of the necessary quality is a burdensome task,[12] which is compounded when the State is party to multiple treaties (an internationally desirable position) and is therefore required to submit multiple reports. In light of these difficulties, there have been repeated calls for reforms to the procedure to make it more effective.[13]

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While some believe that this could only be achieved by unification of the existing bodies into a single one, there has little support in favour of such an approach.[14] Greater support exists for the strengthening of the existing system by increasing co-ordination between the bodies (for example, through the inter-committee meetings), and a shift from comprehensive periodic reports to shorter and more focussed reports[15] (as exemplified by the pilot procedures being used by the Committee Against Torture and the Human Rights Committee[16]) that would both reduce the burden of reporting and highlight the importance of follow-up.[17] The ad hoc nature of the development of human rights protection has meant that the treaty bodies have existed as a patchwork quilt of considerable complexity,[18] which has frustrated their primary monitoring tool; so far they have failed to adapt sufficiently to promote compliance. Current efforts will hopefully harmonise the various procedures and result in a greater number of reports being submitted on time. Of course, the danger is that increasing the submission rate will weigh heavily on the existing backlog[19]: successful reform efforts could well see the current limiting factor in the system transitioning from States non -compliance to becoming the inadequate resources available within the UN.[20] It is therefore commendable that the CEDAW and CRC committees are already working in chambers to reduce delays[21]; when the backlogs are cleared such practice should also enable more detailed consideration of reports which are currently criticised as being of insufficient depth (for example, the HRC generally has no more than nine hours per report and so lack of depth seems inevitable), for failing to provide sufficient justification for their conclusions and because the fact that the (often substantial) gap between the submission of a report and its being considered will frequently render the report out of date.[22] 2 - INDIVIDUAL COMMUNICATIONS As with consideration of States reports, one of the most significant obstacles faced by the treaty bodies with regards to the effective exercise of the optional individual complaints procedures is the lack of resources available to consider each petition and the backlog this has created: across the system, over 500 cases are pending consideration, with an average delay of 45 months between submission and the issuance of the committees findings.[23] Some have argued that this is partly due to a fundamental lack of understanding of the procedure (particularly of the exhaustion of domestic remedies requirement), which leads to a high inadmissibility rate.[24] A former member of the HRC and the CEDAW has proposed that this delay is so unacceptably long that it undermines the effectiveness of the procedure.[25] The reforms that have been implemented to alleviate this problem include: combining admissibility and merits responses from the parties to speed up the process leading to committee consideration,[26] the use of special rapporteurs to expedite the admissibility stage,[27] and working in chambers so as to increase the time available for consideration.[28] However, success in reducing the backlogs is yet to be seen.The committees have also failed to ensure sufficient compliance with their views: compliance rates are estimated between 12-30%.[29] The problem appears to be that since the committees views are generally not binding within domestic legal systems, there is a clash between a States international obligations and the requirements of the rule of law (itself protected by international law), which is exacerbated by the f act that cases before the committees will have been litigated to the highest level thus excluding further internal review.[30] However, Nollkaemper and van Alebeek have argued that this lack of compliance is not fully demonstrative of a failing within the treaty body system because the recommendations expressed will influence domestic legal orders in a less direct manner.[31] The following sub-sections will discuss more positive efforts undertaken by the committees.

2(a) The Role of Precedent A fundamental problem for any body entrusted with the power to consider petitions from individuals is deciding on the required degree of adherence to the reasoning of previous decisions in their current cases, balancing the principle of legal coherence against the advantages of flexibility. It is unfortunate that for a significant period of its history, the HRC chose strict adherence with considerable rigidity in its approach.[32] Fortunately, in August 2003, the Committee clarified that while consistency and coherence of its jurisprudence were necessary, in certain instances it would be necessary to reconsider the true extent of the protections encapsulated within the Covenant in light of external developments.[33]

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Hershowitzs application of Dworkins theory of law as integrity[34] is invaluable in demonstrating the positive significance of the HRCs shift. Integrity requires a recognition that what one has done in the past is relevant to what one ought to do now, it therefore requires a commitment to a moral view by a pattern of behaviour across time.[35] A narrow reading of this is consistent with the most accurate traditional understanding of stare decisis: that it requires courts to follow past decisions irrespective of their merits.[36] However, integrity in judicial decision-making requires more: When ones moral convictions undergo genuine change revisions in ones beliefs and behaviours are not only consistent with integrity, they are required by it.[37] It is submitted that even if one does not subscribe to the entirety of Dworkins theory of law, his theory of adjudicative integrity has clear value in discussions of the role of precedent in a system of rules as an important prescription for judicial activities. Some suggest that strictly binding precedent is fair in that it requires courts to treat like cases alike; however this fairness must be balanced against stare decisiss capacity to entrench unfair rules, especially given that the doctrine is incapable of taking into account the fact that values evolve over time.[38] Considering the human rights individual communication context, while it is valuable that similar petitioners be treated alike at the same period in time, it can be manifestly unfair to treat petitioners alike (no matter how similar their factual circumstances) when they exist at different stages of the evolution of a particular value. Therefore, fairness requires the flexible approach discussed above.Most of the CAT[39] and the HRCs[40] decisions over the last few years recall past General Comments and their jurisprudence. Despite its relatively limited jurisprudence, the CEDAW also references past decisions (both its own and those of the HRC) merely in support of its current views.[41] Therefore, upon examination of the language used by the CAT, the CEDAW and the HRC, it would appear that binding precedent no longer operates and that the committees are simply displaying their engagement with their past, thereby demonstrating their integrity. This view would appear to be supported by the contrasting language used in the HRCs previously rigid approach: the HRC identified that the issue raised was a matter of serious concern but that it remains the jurisprudence of this Committee that [the previous position be applied].[42]The historical reluctance of the HRC to depart from previous judgments despite the shift in the values behind that original decision conflicted with a true understanding of integrity. As such, the move to a more flexible appreciation of the evolutionary character of law inherent in the HRCs decision is to be commended as conforming to this significant theory. However, this success is perhaps negated by the fact that the problem was of the committees own creation: nothing in the treaties ever required the original, rigid approach. 2(b) Issuing Interim Measures The final aspect to be discussed is the establishment of a power to request interim measures where the circumstances of the individual petition require it. Since this was not provided for within the treaties enabling individual communications (except for the protocols to CEDAW and the CPRD which did), it is fortunate that the committees have been able to subsequently adopt such a power through their rules of procedure (for example, Rule 92 for the HRC and Rule 63 for the CEDAW),[43] which is exercised in practice by the special rapporteurs.[44] While the compliance rate has been described as generally good,[45] it is clear that there have been significant instances of disobedience in certain spheres of human rights protection[46]: especially in death penalty cases where there has been a worrying increase in the disease of non-compliance with stay of execution orders.[47] Unsurprisingly this has resulted in powerful and cogent attempts to emphasise that interim measures are binding on States,[48] in spite of the counter-position of the recalcitrant States that such measures can only be recommendatory given that the final views the committees are empowered to adopt are not strictly spea king binding in an absolute sense.[49] The stated rationale behind the rules permitting interim measures is to persuade the State to avoid taking irreversible action[50] that would, in the CATs words, nullify the end result of the proceedings before the Committee.[51] The HRC and the CAT have asserted that the binding force of interim measures lies in the fact that the acceptance of the right of individual petition implies an obligation not to cause irreparable harm to the interests of the plaintiff during the procedure and on that basis an obligation to comply with [such] measures.[52]

To this end, it is important that an esteemed group of individuals (including the chairperson of each UN human rights treaty body, albeit in a personal capacity) has recently recommended that: States should in every instance respect the provisions of interim measure requests issued by treaty bodies.[53] Therefore, although the treaty

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bodies have successfully added to their powers to protect individuals human rights through its adoption of interim measures powers, which is now seen to be central to [their] protective function,[54] there still remains scope for improvement so as to ensure that this success is not undermined by States failure to comply with orders. 3 - CONCLUSION While this paper joins an extended series of critical accounts of the current role of the numerous treaty bodies, it is important not to ignore the immense progress that has been made in the protection of human rights.[55] As Alston has stated, the last 60 years has seen significant progress from the position in 1947, where States happily hid behind Article 2(7) of the UN Charter in dismissing human rights as a purely internal matter incapable of review at the international level.[56] In joining the wide array of UN human rights treaties in addition to a number of regional courts, States have accepted a significant degree of international monitoring, enabling the international community (in the widest sense) to extract from governments the necessary levels of compliance with accepted human rights norms.[57] Nonetheless, there remains much to achieve. This paper has highlighted a number of important weaknesses that must be dealt with and many others have highlighted further difficulties outside the scope of this short investigation.