This book asks what are the potential responsibilities to respect, protect, and fulfill1 international human rights law (IHRL ) of a particular class of non-state actors: non-governmental organizations (NGOs ).2 The book focuses on those NGOs3 pursuing development in a post-genocide transitional justice context acting simultaneously in partnership with state governments, as proxies and agents for these governments, and providing essential public goods4 and social services as part of their development remit. I define development as a process of expanding realization of social, economic, and cultural rights addressing food security, economic empowerment/poverty reduction, healthcare, housing, education, and other fundamental human needs while integrating these alongside the expansion of freedoms and protections afforded by civil and political rights. It uses post-genocide Rwanda as a case study to illustrate how respect and fulfillment of the international human rights law pertaining to reparative justice are hindered by failing to hold NGOs responsible for IHRL. Consequently, this results in discrimination against, marginalization, and the disadvantaging of survivors of the Rwandan genocide against the Tutsi and violations of their human rights.
This book defines reparative justice in accordance with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.5 These are centered upon five principles: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. This book defines NGOs in accordance with Menno T. Kammingaâs definition: âNGOs are most easily defined by explaining what they are not.â
- 1.private structures not controlled by states
- 2.they do not seek to overthrow governments by force
- 3.they do not aim to acquire state power, in contrast to political parties
- 4.they are not for profit
- 5.they are not disrespectful of law.6
I argue that many development NGOs in Rwanda, by not adequately incorporating reparative justice into their development and transitional justice remit, and not acknowledging and responding to the distinctive rights and vulnerabilities of genocide survivors, are neglecting IHRL on the right to reparative justice. They have the capacity to prioritize reparative justice in their programming and in their negotiations with the Rwandan government of how development aid will be disbursed in Rwanda, who will be its recipients, and the prioritization of those facing disadvantage so as not to further marginalize them.
I argue, further, that current soft law demands that NGOs should never enter into a contract for provision of development aid with a sovereign that knowingly entailsâwhether by commission or omissionâa violation of international human rights law. This is a significant departure from prevalent NGO policy which entails substantial compromise of human rights law, despite rhetorical claims otherwise in guiding principles of NGO self-accountability. These often collide with the real-world exigencies in which development NGOs must sacrifice some degree of commitment to political and civil rights within IHRL in order to advance social and economic rights within IHRL, which are generally their focus area, particularly for provision of public goods such as education, healthcare, housing, and income generation programs. Such efforts may be done in ways that undermine the civil and political rights of citizens generally and/or the civil and political rights as well as the social and economic rights of individuals and groups of a particular ethnic, social, geographic, or other background that differentiates them from a favored population group (or several), and discriminates against them. Although civil, political, economic, and social rights are ultimately interconnected and mutually interdependentâand cannot meaningfully be separated both conceptually and practically into a rigid binaryârepressive regimes often favor social and economic rights and severely limit political and civil rights. Only a comprehensive soft law framework within the UN system that addresses the issues of NGO IHRL responsibilities as they pertain to the full range of political, civil, economic, and social rights can elucidate the extent of these obligations in a way that can achieve some degree of uniformity, dissemination, normalization, and accountability.
Though states are ultimately held legally responsible for the acts of NGOs this should not prejudice NGOs being held socially and morally responsible in some capacity and some degree, simultaneously. Absent such responsibility, this would enable NGO impunity for violations of human rights, whether through acts of commission or omission. As Adam McBeth states, âThere is no reason that non-State actors should not have concurrent obligations with states under international law.â7
From the moment that NGOs voluntarily choose to entangle themselves in the delicate and often highly fraught dance of negotiation with states for the freedom to operate and to organize and provide development programming which involves all manner of moral and pragmatic compromises, I argue that IHRL should inform their activities as a matter of social and moral responsibility, similarly to how the Ruggie Principles are expected to inform corporate activities. There is potential for these soft law moral and social standards to become legal obligations, if they eventually achieve widespread status and practice as customary international law. Soft law is not legally binding (unlike treaty law), but creates an aspirational legal framework that can impact policies and behaviors of both state and non-state actors and encourage them to respect, protect, and fulfill human rights law with greater commitment and integrity. Chris Jochnick, of Oxfam America, writes that, âThe narrow focus of human rights law on state responsibility is not only out of step with current power relations, but also tends to obscure them.â8 This book builds upon this argument, arguing that NGOs have substantial power and influence that should be wielded with consciousness of and respect for IHRL.
The arguments for the human rights responsibilities of NGO non-state actors made in this book differ markedly from the arguments about who is responsible for respecting and fulfilling international human rights law historically, which have overwhelmingly focused on states. In this regard it seeks to innovate and push the boundaries of international human rights law because it believes that the current situation is untenable legally, morally, and practically.
But, as Philip Alston argues, ignoring the human rights responsibilities of non-state actors risks ignoring the realities of the evolving nature of how and who impact human rights.Not much more than a decade ago the category of non-state actors remained all but frozen out of the legal picture by international law doctrines and had received only passing recognition even from scholars. While the case-law of the regional human rights systems had begun to address some violations committed by private actors, the resulting jurisprudence was neither systematic nor especially coherent.9
Today, however, at least a subset of non-state actors has suddenly become a force to be reckoned with and one which demands to be factored into the overall equation in a far more explicit and direct way than has been the case to date. As a result, the international human rights regimeâs aspiration to ensure the accountability of all major actors will be severely compromised in the years ahead if it does not succeed in devising a considerably more effective framework than currently exists in order to take adequate account of the roles playe...