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14. Ethnic conflicts and minority protection: Roles for the international community
1 Why should the international community be
concerned with ethnic conflicts?
2. International roles in conflict prevention
and resolution
3 Reconciling the humanist impulsion and the
quest for a stable international order: Requirements by the
international community on how to manage minority conflicts
4
Conclusions
The increased salience of ethnic conflict and violence poses new challenges for the international community. Traditional peace-keeping efforts are not necessarily applicable any more; new tools are needed, together with a fresh understanding of the nature of emerging conflicts. This chapter examines the need for common standards for defining and analysing ethnic and minority disputes, and examines roles and practices that may prove useful in defusing conflicts.
1 Why should the international community be concerned with ethnic conflicts?
Two different factors come into play. One is what I shall call the humanist impulsion towards a morally based civilization, the other is the concern with a stable international order.
The humanist impulsion: This is the primary drive behind the concern with protection of human rights worldwide. It is based on the premise that every human being is born and should remain equal in dignity and rights, irrespective of race, colour, ethnic or national origin, sex, and so forth. This motivation to identify with all fellow human beings has emerged as a gradual process over centuries, in revulsion against past wars of religion or nationalist adventures, against discrimination and hatred. The humanist impulsion also affects, to an increasing extent, governments in their external relations.
The humanist quest gathered momentum in this century in reaction to massive violations, such as those of the extreme nationalism engulfing Europe from 1930 to 1945; the Holocaust, the mass extermination of Gypsies, and other manifestations of intolerant ethnonationalism. The cosmopolitan, humanist drive for a global civilization has manifested itself in the adoption of the Universal Declaration of Human Rights, undoubtedly the most important document ever adopted by any international organization.
The importance of a stable international order: International security is increasingly understood not as nationalist, competitive security, but as an inclusive, cooperative security for a peaceful world. This, in turn, is required to trim the enormous military expenses caused by past confrontation. Other underlying concerns include the common interest in facilitating global economic interaction, including communication and tourism; the common concern with avoiding environmental deterioration; and other international matters, including the avoidance of terrorism. These, among other factors, generate a concern - partly altruistic in its humanist motivation, and partly self interested - in having a prosperous international environment.
Is there an "international community"?
The concept of an international community presumes the existence of a broad range of common values and coordinated interests among states. A broad set of common values has indeed been formulated in the Charter of the United Nations. While the Cold War made it impossible to implement those values through concerted action, the prospects seem immensely better now. Nevertheless, it would be wrong to hide the fact that states have very ambiguous interests, both in relation to specific ethnic conflict and in regard to human rights issues in specific countries. States have special interests which may deviate considerably from their general interest in the preservation of a peaceful international order.
Special interests related to particular conflicts may be derived from hegemonic or geopolitical concerns of influence and dominance, or from ethnic identification with one of the parties to the local conflict. Countries having large numbers of their own kith and kin living in other countries (sometimes referred to as "national minorities") are tempted to respond to demands for support in cases where those minorities get into trouble. Examples abound in the recent past, including: the Turkish concern with the Turkish-speaking minority in Cyprus, which led to a military intervention; the Indian concern with the Tamils of Sri Lanka, which led to a traumatic peacekeeping effort; the Armenian concern with the majority population in the Azerbaijani enclave of Nagorno-Karabakh, which is verging on a war between Armenia and Azerbaijan; the Russian concern with the fate of the people in South Ossetia, which might lead to direct Russian intervention; and - possibly even more dangerous - the risks associated with the growing problems faced by Russian-speaking populations in Latvia and Estonia.
The combination of hegemonic interests, ethnic identification, and geopolitical concerns thus causes many states to have ambivalent attitudes in response to specific conflicts. Many other states want to avoid becoming involved, because of unforeseeable consequences. It is possible to observe, however, an increasing preference for handling such issues through inclusive international organizations. Nevertheless, these organizations are affected by the ambiguities of their member states. As repeatedly stated, most recently by the Secretary General of the United Nations in his An Agenda for Peace (A/47/277, S/24111), "The United Nations is a gathering of sovereign states and what it can do depends on the common ground that they create between them."
He added, however, that while the adversarial decades of the Cold War made the original promise of the United Nations impossible to fulfill, the January 1992 summit represented an unprecedented recommitment, at the highest political level, to the purposes and principles of the United Nations Charter, and An Agenda for Peace constituted an effort to indicate the way in which the emerging post Cold-War common ground could be used to advance more effective roles in peace-making by the international community through the United Nations. Let the present article be a contribution to the reflection on how this can be done in regard to ethnic conflicts inolving minorities.
2. International roles in conflict prevention and resolution
Two basically different, but complementary, approaches will be examined here. One is based on evolving law, and has three main components: standard setting; supervision of implementation; and settlement of disputes over the application of the standards. The other is based on diplomacy, and has three other main components: preventive diplomacy; peace-making; and peacekeeping. Between them there is an evolving relationship, and they are increasingly combined to achieve a joint fourth major task: peace-building. I shall first explore briefly the two approaches, and then examine the possibility of closer harmonization between them.
The legal approach to minority issues
The concern here is with international efforts to establish standards on how governments should deal with their inhabitants, and the implementation of such standards. This is intimately linked with the evolution of international organizations, through the League of Nations and later the United Nations, and through regional organizations.
For simplicity's sake, three major stages of relevance to minority and ethnic group rights will be examined here. The first concerns the arrangements connected with the peace settlements after the First World War. The League of Nations, while appearing to be a global organization, was mainly a European-Latin American organization with Japan as one of the few Asian members. The end of World War I was, in many ways, the victory of nationalism over empires in and around Europe, but most colonial empires remained intact.
For Europe, nationalism was seen as a progressive step, strongly endorsed by Woodrow Wilson, the president of the United States who played a major role in the Versailles negotiations. It was made a significant guideline for the organization of the new international order. The nationalist ideology, requiring states to be congruent with nations in the ethnic sense, had a strong appeal. It was, of course, impossible to implement it fully. Whichever way state borders were drawn, groups of different nationalities were bound to be found inside many of the new or the restructured states. Therefore, provisions for protection of national minorities became the major preoccupation.
It is often believed that the Versailles settlements constituted a major advance for minority protection.1 This is hardly tenable. Minorities became much more exposed than before, owing to the endorsement of the nationalist ideology as a cornerstone in the international legal order. The system of minority protection was established mainly in order to sweeten the pill. Unfortunately, the nationalist pill turned out to be deadly dangerous. It facilitated the emergence of numerous authoritarian regimes across Europe and ended with the devastation of World War II, initiated by the high priest of nationalism, Adolf Hitler.
The second stage set in at the end of World War II. The lessons of malignant nationalism had been learned; the new international order was to be based on pluralism and tolerance. The foundation was the International Bill of Human Rights, whose basic principle was the equality of every human being irrespective of national or ethnic origin - and also irrespective of race, religion, and sex. States were expected to create equality for everyone before the law and to give everyone equal protection by law.2
Another core element in the new international order was the principle of territorial integrity. The existence of different nationalities within a state should not be a reason for dividing it up, provided pluralism and equal respect were provided for members of all groups. While the right to self-determination was recognized, it was understood as self-determination of peoples, not of nations, and was essentially related to the dismantling of colonialism and the prevention of occupation. The essential point is that the right to self determination should belong to the collectivity of persons living within the territory concerned - the colony, or the occupied territory. Self-determination was no longer intended to have an ethnic basis. The group living in an inherited territory should have the right to govern itself.
In this new world, the problem of minorities was not expected to be of great significance. If states behaved according to the principle of pluralism, the different groups would have no particular difficulty. The freedom of religion (UDHR art. 18, ICCPR art. 18), to which every individual was entitled, would make it possible for members of religious groups to assert their religious identity; freedom of expression and information (UDHR art. 19, CCPR art. 19) made it possible for groups to use their own language as a basis for expression and communication; freedom of association (UDHR art. 20, ICCPR art. 22) would make it possible to organize cultural and political associations along ethnic lines if they so wished.
Nationalism was not dead, however, neither in the collective mind of the majority nor among the ethnic minorities. Many of the former sought to use the state as a vehicle for their particular nationalist self assertion, for instance by elevating their language to be the only official language; the latter, in resistance, increasingly sought to have a reserved domain for themselves, to opt out altogether, or to have borders redrawn in order to join other states where their own ethnic group dominated.
From the very beginning of the post-war period, some half-hearted efforts were made to develop mechanisms for the protection of minorities.3 There was little enthusiasm, however, and not much happened apart from the reassertion of the freedom of all individuals to preserve their religious, cultural, and linguistic identity, alone or in co-operation with others (ICCPR article 27).4
Nationalist and ethnic tensions increased in the 1970s and 1980s. By 1989/90 it was becoming clear that nationalism was reasserting itself with a vengeance, and the minority problem had to be addressed more seriously. Some progress has been made in recent years, in that a Working Group under the Human Rights Commission has been able, after 14 years of debate, to adopt a Draft Declaration on the Rights of Minorities. Efforts have also been made within the Council of Europe. A Draft European Language Charter and a Draft European Minority Convention have been prepared but the prospects for their adoption remain uncertain.
Standard-setting is also proceeding in relation to the rights of indigenous peoples.5 These are, in most cases, small and very vulnerable groups who inhabited regions subsequently settled or occupied by more assertive and modernizing groups. The indigenous peoples have generally been marginalized, pushed into the hinterlands. Many of them, however, have shown great resilience, and have been able to develop their own culture further, influenced, but not absorbed, by the more technology-intensive culture around them. In recent years, their representatives have become active at the international level, developing their own international network of organizations and participating with great energy in a working group within the United Nations on the drafting of rights of indigenous peoples.
The Conference on Security and Co-operation in Europe has also, to an increasing extent, sought to elaborate standards relating to minorities. Within the CSCE, however, this does not take the form of precise legal standards but rather as broad political principles. The Helsinki Final Act of the CSCE refers both to the rights of minorities and to territorial integrity. The relation between these two has become a major issue in recent years. The dominant position, however, is that minority rights have to be solved in preservation of the territorial integrity of the inherited state.6
The significance of standard-setting for the resolution of conflicts
Collective standard-setting is, basically, a dialogue (or multi-party discussion) in search of common solutions to common problems. It can work in so far as the problems are fairly common and if underlying values are broadly shared. Its primary function is preventive.
Through the application of standards adopted at the international level, governments can defend their policies against militants both inside majority groups and among minorities. The existence of standards reduces the range of legitimate options, consequently reducing the degree of uncertainty about outcomes. This can be reinforced by the desire to try to be seen from the outside as conforming to civilized standards.
Secondly, the adoption of international standards for the treatment by governments of their own subjects, including minorities, affects the policies of external actors. They have, through reference to the internationally adopted standards, a framework by which to assess the performance of states and governments in their internal affairs, and can take this into account in the formation of their bilateral relationship with that state, in development policies and other matters.
In some circumstances, the process of standard-setting can in itself contribute to conflict resolution. The most interesting case is that of the UN Working Group On Indigenous Peoples' Rights. Via this group, indigenous peoples' representatives have joined in a dialogue with governments from countries in which indigenous peoples live to discuss the best ways of handling situations involving minorities. Their debate about standards to be applied to indigenous peoples has already led to significant legal changes in several countries.
However, the dialogue becomes effective standard-setting only when there is a basis of real, not only token, agreement. In the real world there is often considerable ambiguity: governments might wish to be able to apply generally accepted standards but may find themselves in situations where this would be politically impossible or too costly for them. The standards could remain empty rhetoric unless international mechanisms existed to promote or ensure their application, also in times of stress.
Duty to cooperate and duty to prevent
All states belonging to the United Nations have, in accordance with article 56 of the Charter, undertaken an obligation to cooperate with the organization in promoting universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion (UN Charter, art. 55c). This obligation to cooperate in the prevention of human rights violation extends to all standards adopted by the United Nations in the field of human rights.7
International supervision of national implementation
Human rights bodies of the United Nations have developed several procedures for cooperative efforts to ensure respect for human rights.8 One is supervision of the national implementation of adopted standards. Under the International Covenant on Civil and Political Rights (art. 2), all states party to the Covenant undertake to respect and ensure the provision to all individuals within their respective territories of all the rights contained in the Covenant, without distinction of any kind. Under article 40 of the same Covenant, the states are obliged to submit reports on the steps they have taken to implement those obligations, and those reports are to be examined by an elected international committee which carries out a dialogue with representatives of the state concerned on the degree to which the latter has complied with its obligations.
This formalized dialogue between governments and United Nations expert bodies is applied also to a wide range of other conventions. These reports are then examined by an expert body of the United Nations, which, in regard to each report, convenes representatives of the government concerned for a discussion of the progress made and the obstacles encountered. Admittedly, the dialogue is not always very satisfactory. Nevertheless, it is evolving and plays an increasingly important role.
Complaint procedures for, or on behalf of, individuals
A second, essentially preventive function is the availability of individual complaint procedures. Individuals who claim that they have been subjected to discrimination or other violations of human rights have the possibility, under strictly regulated rules, to address the committees of the international human rights bodies, in order to obtain a finding whether or not the alleged violation has taken place. This procedure is open only in regard to states which have accepted such procedures, and many states still fall outside this arrangement.
Such procedures are functioning reasonably well in regard to governments which are committed to the implementation of human rights and which do not face severe internal opposition to it. In many societies of the world, however, relations are not so harmonious. Religious conflicts, fundamentalism, ethnonationalism, and profound social cleavages generate situations where governments are not willing or able to ensure compliance of human rights. The United Nations human rights bodies have tried to address these kinds of situations too, by developing mechanisms for responding to gross and systematic violations. A description of these procedures is found in United Nations Action in the Field of Human Rights (United Nations Centre for Human Rights, 1988: chap. XIV C).
The precarious assumption: Is only the government side at fault?
The predominant attitude held by human rights activists has been that it is the government which is at fault. The government is of course obliged to abstain from violations and has a duty to prevent them. Nevertheless, when violations occur, the government is held to be at fault.
The precariousness of this argument becomes obvious in cases of serious group conflicts. The duty to prevent violations also includes an obligation to protect from group violence - but what can the government do when the group violence is out of control?
One side of the coin is that the human rights normative system allows for suspension of some human rights under a state of emergency. What about the other side - restraining the violent opposing group? It may be alleged that this is the responsibility of the government, and that the government should take all means compatible with human rights to control such groups.
There should be no international encouragement of groups which engage in violence, and yet it occurs - as verbal endorsement of their self-determination claims, or even as direct intervention. Governments should not be excused for carrying out violations beyond what is permissible under a state of emergency, but more efforts should be made to find ways to restrain the opposing group. There are groups, such as the Khmer Rouge or Sendero Luminoso, which have no moral standing at all. But there are also armed secessionist groups which evoke strong sympathy in some circles, for instance the Sikhs, the Tamil Tigers, the Armenian community in the Azerbaijani enclave of Nagorno-Karabakh, or the South Ossetians in Georgia. Their drive for self-determination and external endorsement of it constitute major problems for international peace in our time.
Applicability to group conflict resolution?
Is the legal approach, based on human rights and minority standards, functional in regard to serious group conflicts? A major problem is that the parties in such conflicts have two basically different approaches to such situations. Governments consider it their absolute duty to maintain law, order, and territorial integrity whilst secessionist groups are convinced of their moral and legal right to self determination.
Once the conflict has coalesced, the groups have formed, and polarization has occurred, one is no longer dealing with individuals or associations but with hardened and militant groups, either in confrontation with each other and/or the government. Outside governments may also be drawn in, providing support to the minorities, to the extent of being accused of illegal intervention.
Inter-state dispute settlement
Human rights issues are mostly dealt with in intergovernmental organizations through procedures very different from the traditional inter-state dispute mechanisms which are typical for normal international law issues. While international law has been traditionally understood as law regulating the relationship between states, human rights regulate the relationship between authorities and their subjects. Most outside states prefer multilateral channels or institutions to deal with such issues.
The International Court of Justice, established for the handling of disputes between states, has not been used much for these purposes. For instance, it is revealing that no state was prepared even to make use of the right under the Genocide Convention to bring Democratic Kampuchea to court for the massive human rights violations perpe bated by the Pol Pot regime (Kooijmans, 1991). Nevertheless, as also pointed out by Kocijmans (1991), inter-state dispute settlements are provided for in a number of instruments (CCPR, ICERD, the European Convention for the Protection of Human Rights and Fundamental Freedoms, etc.) and this option has been applied, particularly under the European Convention, in a number of cases. In issues involving minorities, however, the Court has not been much used either by the United Nations or by the Council of Europe or the CSCE.9
The procedures under the so-called "human dimension" of the CSCE contain considerable prospects for further development. These emerged out of the Vienna follow-up meeting, which started on 4 November, 1986 and ended on 15 January 1989, thus spanning the crucial years of the introduction of glasnost and the end of the Cold War. They have since been further developed through several subsequent meetings and consist of four stages:
(i) exchange: states are obliged to respond to requests for exchange of information on issues under the human dimension of the CSCE;
(ii) bilateral consultations, to be held at the request of one state to clarify the information and the facts;
(iii) notification: other members can be notified, by any CSCE member, on questions emerging from these contacts which the notifying state finds important;
(iv) discussions at the annual meeting on the human dimension, which can be initiated by any state.
Procedures for fact-finding have since been further developed under the CSCE. They are intended partly to help in confidence building and partly to help assess whether new members conform to CSCE principles. Such factfinding can be of help at early stages in the conflict. Later, when the conflicts have hardened, it seems that much more comprehensive processes are required, involving a wide range of activities.
At the United Nations, the debate about new approaches is now being pursued with great vigour. A survey of possible and desirable activities has been outlined in the recent report by the United Nations Secretary-General, An Agenda for Peace, which was presented to the Security Council on 17 June 1992.
Preventive diplomacy
Preventive diplomacy is defined, in the Secretary-General's report, as "action to prevent disputes from arising between parties, to prevent existing disputes from escalating into conflicts and to limit the spread of the latter when they occur." Such diplomacy is primarily addressed to inter-state disputes. The United Nations does not see it as its task to prevent disputes from arising between different parties inside a country - indeed, the main political activity inside a state is to bring up disputes. It is crucial, however, to ensure that the disputes do not escalate into violent conflicts. This is essentially what human rights, including the political rights underlying the required democratic governance, are about.
If international human rights bodies were sufficiently effective, they would guide the local parties to manage their disputes, in compliance with accepted human rights standards, through democratic channels. When this does not succeed, however, and conflicts do escalate into violence, other states can be affected in a multitude of ways - refugee flows, danger of intervention by the "mother country," crossborder terrorism, and disruption of trade, communications, and development activities. Preventive diplomacy is indeed required to limit the spread of such conflicts should they occur. Consequently, there should be a closer link between the activities of the human rights bodies and those of the political organs of the United Nations, including the Secretary-General.
Peace-making
This term is defined by the Secretary-General as "action to bring hostile parties to agreement, essentially through such peaceful means as those foreseen in chapter VI of the United Nations Charter. Chapter VI refers to negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means as chosen by the parties themselves. The Charter had disputes between states in mind. Disputes arising between groups inside a state have been subject to international concern only in so far as they bring up human rights problems.
Unfortunately, only some aspects of the problems can be addressed by the international human rights bodies. They can ascertain whether the government, in its response to the conflict, has respected human rights norms. International human rights bodies have not, so far, seriously investigated the underlying causes in order to help the parties solve their conflict. There are, however, certain developments in that direction, such as advisory services, including the special rapporteurs and their recommendations.
At the political level of the United Nations, it has increasingly been recognized that hostile disputes inside countries can have serious international implications; consequently, there has been a growing tendency to deal with such disputes. Recent examples include the actions in El Salvador and Cambodia.
Peace-keeping
This is defined by the Secretary-General as the deployment of a United Nations presence in the field, hitherto with the consent of all the parties concerned, and normally involving United Nations military and/or police personnel and frequently civilians as well. The "consent" to which he refers is the consent of the states involved in a dispute. In several cases, however, disputes have arisen which are primarily domestic but have great international implications (the Congo, Cyprus, Lebanon), in which case consent strictly speaking is necessary only from the government. However, for a number of reasons, peace-keeping forces have not been intended for substantial military action; consequently, de facto consent is required also from organized groups which otherwise might start armed action against the United Nations peacekeeping forces.
In ethnic conflicts, as seen often in the recent past, local groups may not be willing to stop allied action when United Nations peacekeeping forces are deployed. This is why the Secretary-General now proposes the possibility of making use of peace enforcement units. This is a new and important, but difficult, departure. It is not a question of deploying large-scale UN forces to resist aggression by states, but to enforce agreements which are intended as steps in the solution of conflicts.
Peace enforcement appears particularly applicable in cases of cease-fires which are agreed to but very quickly violated, often by militants who want to upset the peace process and who succeed because of the response by the other side to the provocation. If the United Nations has the necessary presence to enforce the agreement, such provocation's could be prevented, and, should they happen, the United Nations could take the necessary steps against the provocateur, thus avoiding the escalation which otherwise almost always results from provocation. As the Secretary-General points out, however, the task of peace enforcement can on occasion exceed the mission of peace-keeping forces and the expectations of peace-keeping force contributors. Peace enforcement units may have to be more heavily armed than normal peace-keeping forces, and prepared and trained for armed action. In ethnic conflicts such a presence may be essential, but it can still operate only where the parties are prepared to take steps towards peace and can agree on some interim measures towards that end.
In the case of Bosnia and Herzegovina, there has been a large degree of consensus in the United Nations on who is to blame and on the basic standards that should be implemented. The Serbs have had practically no external supporters and yet they have managed, by the relentless use of arms, to prevent the United Nations from making peace in the region to date. What has become very clear is that the UN has to play a more forceful role - still not interventionist, but operating at the consent of the host government and able to use force against recalcitrant groups.
Peace-building
The Secretary-General depicts the concept of peace-building as comprehensive post-conflict measures to identify and support structures which will tend to consolidate peace and advance a sense of confidence and well-being amongst people. Among the measures mentioned he refers to advisory and training support for security personnel, monitoring elections, advancing efforts to protect human rights, reforming and strengthening governmental institutions, and promoting formal and informal processes of political participation. The major thrust is towards good governance, which in turn is intimately dependent on a proper safeguard for human rights for all, including the different ethnic and religious groups.
However, peace-building can also be carried out preventively. When the international community consistently seeks to encourage the development and strengthening of the institutions for good governance, including such arrangements for pluralism as will satisfy reasonable demands by minorities, conflicts might not erupt in the first place. Consequently, there is common ground between human rights endeavours and those of peace settlement.