Global Policy Forum

By Michael Kagan*

This month, the United Nations fundamentally restructured the way it supervises and promotes human rights around the world. But to understand what the UN has and has not done on the reform front over the past year, let me begin with a story I heard along the Sudanese border in Uganda a few years ago.

At some point in the midst of South Sudan's civil war, word was passed to refugees in isolated camps that a high-ranking UN official wanted to see their living conditions for himself. Local UN staff invited refugee leaders to talk to their communities and to write letters to the visiting official because he wanted to hear what they had to say.

The refugee leaders were nervous. They owed their positions to these UN employees and to local Ugandan authorities; their communities depended on international good will to survive. Yet they had real complaints and rarely had the chance to communicate them to anyone who could really do something, so they decided to write honest letters. They said that the land they had been assigned was not fertile enough to grow sufficient crops. They said they lacked educational and training opportunities. The UN forced them to farm the countryside, when many of them wanted to learn professions, move to the city, and teach their children a different lifestyle. They also complained that roads were impassable in the rainy season, which made health care and police inaccessible.

The refugee leaders handed in their letters, knowing they were risking retribution once the visit was finished. Finally the UN official came. He didn't actually go out to the refugee settlements that had the worst conditions because he was relying on local staff to take him around. He was told that he had received some letters from the refugees, and he listened with interest to letter after letter. But the letters he heard were not from the people who had complaints. Instead, he only heard refugees thanking Uganda for its hospitality and the UN for its services. The refugee leaders went back to their communities and told residents that it had all been a terrible mistake.

I don't know if this incident really happened, but the fact that refugees wanted to tell me their story says a lot about what we need to do to make the UN accountable to the vulnerable people it is mandated to serve all over the world. The refugees wrote their complaints because they believed that a high-ranking UN official would do the right thing, if only he knew what was really happening. The problem was not a dearth of good will but rather that the UN lacked an effective institutional mechanism by which the refugees could be heard.

Supervision vs. Accountability

Last year I wrote a column in FPIF about what I called the "missing third leg" of the UN's reform effort. (http://www.fpif.org/fpiftxt/468) There has been lots of discussion about how to achieve two essential components of UN reform. First, improving basic day-to-day management to prevent corruption and improve efficiency. Second, restructuring key institutions like the Human Rights Commission. But the next struggle must be to make the UN more responsive to people like the refugees I met in Uganda.

On March 15, the General Assembly replaced the Human Rights Commission with a new Human Rights Council. The purpose of the commission had been to promote human rights and censure states that committed systematic abuses. Since countries like Saudi Arabia, Libya, and Zimbabwe got to cast votes, the commission lost moral authority, the only real weapon it ever had. The hope behind the recent restructuring is that it will be more difficult for abusive governments to become members of the new Human Rights Council. (Only three countries voted "no" on the reform proposal: the United States, Israel, and the Marshall Islands. U.S. Ambassador John Bolton argued that the reforms do not go far enough.)

Improving the way it supervises human rights is essential, but it is not the most direct thing the UN could do to improve its own human rights record. In the West, we mostly see the UN as a body that sets standards of international conduct and hosts diplomatic conferences like the annual meeting of the Human Rights Commission. But outside of New York and Geneva, the UN has a whole other face. When I went to northern Uganda, one of the first things I noticed was that nearly every vehicle on the road bore a sign noting that it had been purchased by the UN. In terms of resources, the UN was the dominant power broker, doling out essential material and funds to both local residents and the government itself.

When a sovereign host government is weak, the UN can acquire substantial power over daily life. Here, the UN was an executive agency carrying out administrative activities that in another country would be handled by a social security office, a welfare agency, or a government social worker. Cambridge scholar Guglielmo Verdirame has called refugee camps "legal anomalies" because they are on a state's sovereign soil but are effectively under UN control. In situations like these, how can we make UN agencies accountable to people who depend on them? How can we make sure that UN offices act according to both their own high standards and international law, when they operate in remote places far from television cameras and diplomats?

Humanitarianism in Crisis

Chronicling the extreme to the mundane, newspapers, books, and academic journals abound with examples illustrating how UN boots on the ground often fail to meet the organization's own standards of human rights protection. The most sensational cases have concerned allegations that UN staff or peacekeepers directly exploit vulnerable people for money or sex. Less high-profile but more routine are instances in which UN agencies simply fail to practice what they preach. My own work as a lawyer for refugees has focused on this last level; in around 80 countries, the UN considers refugee applications using procedures that fall far short of the standards of fairness expected of governments.

Such injustices exacerbate a deep crisis in global humanitarianism, a movement emerging in the 19 th century with the International Committee of the Red Cross and devoted to the vague but unassailable goal of reducing human suffering through international cooperation. A broad spectrum of organizations and operations fall under this banner ranging from battlefield medical clinics to famine relief efforts to microcredit schemes.

For a long time, the humanitarian and human rights movements seemed married to each other, and they have often overlapped in the public consciousness. UN agencies like the High Commissioner for Refugees and UNICEF often bear both humanitarian and human rights mandates. But the two movements actually have very different foundations, agendas, and approaches.

Whereas humanitarianism is vague, human rights is specific, rooted usually in treaties and legal rules. Human rights is less diplomatic; it tends to point fingers when humanitarianism can politely ignore obvious wrongdoing. In the case of Darfur, a human rights activist will accuse the Sudanese government of sponsoring ethnic cleansing and call for criminal investigations against Sudanese leaders. A humanitarian will use the passive voice and say that hundreds of thousands are in danger of starvation and disease without laying blame for how they ended up that way. Humanitarians often criticize human rights activists for being impolitic and impractical. Human rights activists often criticize humanitarians for being unprincipled.

Humanitarianism in its earliest forms was founded on secrecy and elitism, balanced by the assumption of good intentions. The International Committee of the Red Cross observes prison conditions and military conduct but normally only communicates its concerns to the offending government; it does not publish reports like Amnesty International. Humanitarian workers—who are often the international community's most prominent witnesses on the front lines—have often been silent in the face of gross abuses against their fellow human beings.

It's not surprising that politicians favor the humanitarian approach. They promote emergency medical and food aid because it is a politically tame means of doing something. But humanitarianism by definition doesn't aim to solve the world's problems. Whereas the human rights movement seeks to prevent abuses by man against man, humanitarianism simply tries to minimize the social costs. The result is a world of seemingly endless needs.

But the crisis actually runs much deeper. It's one thing to say that humanitarian aid is inadequate to solve the world's problems and quite another thing to contend that it actually makes things worse. In Ethiopia and Sudan, among other crises, aid organizations have collaborated with very unscrupulous governments and rebel groups in order to deliver food to hungry people.

One reaction to this dilemma is to turn our backs on the whole idea of international cooperation, an approach that is particularly appealing to people who have long been skeptical of the UN. Take, for example, journalist Robert Kaplan's scathing critique of humanitarian aid in Ethiopia in the 1980s, Surrender or Starve, which vividly illustrates how famine relief propped up the horrors of the Dergue rulers in Addis Ababa. The author recalls how aid agencies (the UN included) defended Ethiopian human rights abuses that were actually worsening the starvation. Fed up with the unprincipled and naí¯ve aid programs that he observed, Kaplan argued instead for aggressive, unilateral state action and called for the United States to provide more military aid to insurgents in active pursuit of regime change. In exasperation, the author expressed admiration for governments as diverse as France, Libya, and Israel, who simply took matters into their own hands and acted with unilateral force when faced with Gordian knots.

This is a classic case of throwing the baby out with the bath water. The UN, and humanitarian agencies in general, may not always live up to high standards, but that is hardly a reason to discard the idea of international cooperation. Whatever the UN's failings, it is the only real alternative to a might-makes-right worldview. But if the UN cannot be held accountable to its own standards of conduct, calls for unilateralism will multiply.

Pulling Back the Veil of Purity

Unlike officials in democratic governments, UN politicians are not accountable to any citizenry; to become secretary-general, Kofi Annan campaigns for the support of world governments—in other words, the support of other politicians. The process is diplomatic, not democratic. Yet UN staff are simultaneously bound to their institution's high standards. The assumption that UN staff always act in good faith and are always reliable has historically been the glue that holds this delicate arrangement together.

Because the UN is built on the assumption of purity rather than actual institutional accountability, scandals pose a greater threat to the system than they would in an established democracy. With regard to humanitarians, moral authority has been assumed, not questioned. The suggestion that noble mandates do not ensure noble deeds comes as a serious disillusioning shock to the system. It removes the veil of purity that has supported the development of international institutions for more than 100 years.

The best way to react to this unpleasant reality is to see the quest for accountability as part of the UN's natural institutional growth. Indeed, some steps toward accountability have already been taken. UN agencies that previously saw themselves solely in the humanitarian vein have been integrating standards for the protection of human rights into their internal guidelines. One of the best things the UN has done in recent years has been to beef up its investigation and inspection units. (http://www.un.org/reform/mru.html) These are basically the UN's internal affairs divisions charged with investigating corruption and staff misconduct. They make accountability possible at least in the most extreme cases.

Stronger investigative arms are essential, but they're just one part of the prescription. As noted in a recent study of the UN refugee agency by Mark Pallis (http://www.iilj.org/papers/documents/2005.12Pallis.pdf), current investigations and evaluations are usually initiated in Geneva and do not make the organization fully answerable to the people it serves. When the UN sets standards for its own conduct, it often does not establish mechanisms to ensure adherance to the standards. There's a tendency to say, "Just trust us." For instance, in September 2005 the UN refugee agency released long-awaited guidelines aimed at improving the way it decides on individual applications. There was progress on protecting applicants with special needs, but the UN insisted on keeping most evidence secret and did not establish an independent appeal system for refugees. (For more information, read RSDWatch.org, http://www.rsdwatch.org/index_files/Page441.htm.)

Steps enabling vulnerable people and their advocates to challenge UN decision-making will be the most difficult for the bureaucracy to swallow. No institution surrenders power and control easily. That's why the human rights movement needs to present its own agenda for UN accountability. Human rights activists are uniquely suited to strengthening the UN. The human rights movement depends on the credibility of international law and international standard setting. But the human rights movement has also been at the global forefront of calling for transparency and accountability in all governments. We need now to focus this scrutiny on UN operations.

Making the UN a Human Institution

No institution should be built on the assumption that its staff members will be perfect, especially when they work under as much pressure as is typical in UN operations. While continuing to aspire to the highest values of mankind, without oversight, the UN cannot expect its individual employees to be above corruption, abuse, carelessness, ignorance, or simple burnout. Human rights accountability could make the UN a more self-correcting institution, able to respond to its own mistakes and able to deal with the fact that its staff are human beings with human imperfections. Here are some concrete steps that human rights advocates could propose:

Pass a UN Freedom of Information Act. The UN keeps a great deal of nonsensitive policies and decision-making records internal, shielding them from scrutiny. Although strengthened internal inspection offices are essential, external sunlight is still the best general disinfectant.

Establish a UN judiciary. The UN has legislative bodies (the General Assembly and the Security Council) and an executive branch (the secretary-general and a myriad of offices and agencies), but it has no court system, no means for an individual person to claim that a UN office is failing to live up to the standards set by the General Assembly and other bodies.

What's missing is a real system of administrative law, the means by which citizens in democratic countries challenge decisions made by executive agencies. Secretary-General Annan has begun a process of improving the UN's "internal justice system." (http://www.un.org/reform/pdfs/redesign%20panel%20for%20justice.pdf) But, as the name suggests, this mechanism would deal solely with internal matters, mainly employment disputes involving UN staff. That's important, but it's not enough.

What the UN needs most is an administrative justice system open to people directly affected by UN policies. (For more information on global administrative law, read B.S. Chimni's study, http://iilj.org/global_adlaw/documents/ChimniPaper.pdf on the expansion of global administrative law.) In the long run, the UN should have a unified tribunal system with a high court at the top that can issue binding rulings, but it could start with judicial oversight of UN entities that wield power over vulnerable individuals. I have proposed such a system for the UN refugee agency, for example. (http://www.rsdwatch.org/index_files/Page462.htm)

Build an ombudsman network. A less-formal but perhaps equally effective means of establishing accountability on the ground would be to equip each UN agency with an ombudsman office. Individuals subject to UN operational programs should be able to submit complaints to an independent department. Inspection offices could investigate outright misconduct, and ombudsmen could deal with more routine forms of bureaucratic neglect and frustration. The ombudsman would follow up on particular cases and publish reports related to systematic issues. Though unable to issue binding decisions, an ombudsman would be more accessible and more efficient at resolving lower-profile problems.

Effective institutions set high standards and then hold people accountable to them. For more than 50 years, the UN has been doing well on standard setting. Now we need to work on accountability.

About the Author: An American lawyer, Michael Kagan teaches refugee law at Tel Aviv University's Refugee Rights Clinic and is a contributor to Foreign Policy In Focus (www.fpif.org). He manages the website www.RSDWatch.org, which provides independent information on the way the UN decides refugee cases, and is a founder of the U.S.-based group, Asylum Access (www.asylumaccess.org).