New York, 26 October 2015
Mr. President, Excellencies, Ladies and Gentlemen,
I am very pleased to present this report that addresses one dimension of the fourth pillar of the mandate, guarantees of non-recurrence, focusing my analysis on the preventive potential of measures associated with the reform of the security sector, including the vetting of security institutions. This report follows the report I presented in September to the Human Rights Council (A/HRC/30/42) on guarantees of non-recurrence.
The notion of guarantees of non-recurrence has received significant, albeit sporadic and uneven attention in various instruments and documents. It has been said that a commitment to non-recurrence is part of a proper understanding of remedies, and moreover, that it is entailed by a commitment to rights.
Conceptually, there is a difference between guarantees of non-recurrence and the remaining three core elements of a comprehensive transitional justice approach, namely, truth, justice and reparation. While those three elements refer to measures, ‘guarantees of non-recurrence’ refers to a function that can be satisfied by a broad variety of measures. The foundational texts already demonstrate this variety, pointing to, inter alia, reforming institutions, disbanding unofficial armed groups, repealing emergency legislation incompatible with basic rights, vetting security institutions and the judiciary, protecting human rights defenders and training members of security institutions in human rights. Because guarantees of non-recurrence are a function that can be satisfied by diverse measures, there is no such thing as a general non-recurrence policy that will be equally effective in all contexts. An effective policy designed to prevent systemic violations will need to adjust form to function and choose the proper measures.
Institutional reforms are an important part of a non-recurrence policy but only one part. Yet, the potential of vetting programmes have crowded the discussions about guarantees of non-recurrence in the transitional justice sphere. I stress in my report that it is important to situate vetting within the broader framework of security sector reform and to think about prevention in terms that go well beyond vetting, as important as the latter might be.
Vetting the members of security institutions can make significant contributions to transitional justice processes, which explains their abiding attractiveness despite the relative dearth of successful experiences. As other transitional justice measures, when implemented as a part of a comprehensive transitional justice policy, vetting can offer recognition to victims, foster civic trust, contribute to social integration or reconciliation, and strengthen the rule of law. In particular, under the right circumstances, vetting could be an ‘enabling condition’ of other transitional justice measures, in the sense that, if institutions that were responsible for violations can be vetted early on in a transition process, other transitional justice measures would certainly work better. Vetting has also the potential to contribute to prevention, as it can help to dismantle networks of criminal activity which, in addition to creating resistance to the implementation of transitional justice measures, may destabilise the transition and eventually pose serious threats to democratic institutions and to the rule of law.
The challenges faced by vetting processes are significant. In particular, vetting awakens strong political opposition and resistance and lends itself to political manipulation. Vetting programs are usually highly complex and resource intensive, and often depend upon information that is not always available, especially in post conflict settings. In this report, I aim at offering some guidance to meet these challenges and promote the articulation of ‘vetting strategies’ analogous to the strategies that can enhance the success of prosecutions in the domain of criminal justice.
In relation to the political opposition and resistance to vetting, vetting strategies can aim at trying to strengthen incentives (demand) for vetting, and also at trying to weaken opposition to it. On the first point, almost without exception, I have seen that it has been the tireless work of civil society organizations that explains the relative success of transitional justice. Regarding vetting it is no different. Ultimately, the incentives for establishing vetting programmes are seldom strong enough to overcome the disincentives; the moral convictions of individual political leaders are rarely sufficient. Informed civil society actors can not only counter resistance to vetting and advocate for reform but also lend technical know-how on vetting that rarely exists in transitions. I therefore urge States and international organisations to invest in the development of civil society capacities on vetting and other areas of security sector reform. Generally, there is much less familiarity amongst civil society organisations with vetting, and security sector reform more broadly, than with other transitional justice measures.
Civil society organisations can also play an important role in collecting and analysing background information on officers that can be subject to screening. Such information constitutes the foundation of any vetting process but is often not available at all or not available in the right form. I therefore encourage training civil society organisations on how information should be collected and organised so that it can be used in vetting process.
While insisting that individuals implicated in serious human rights violations ought to be removed from and ought not to be integrated into the security sector, I encourage the adoption of approaches to vetting that stand a realistic chance of being implemented. Vetting strategies may have to respond to the characteristics of weakly institutionalised settings, and to the likelihood of strong political opposition to vetting, insufficient capacities to remove all officers involved in human rights violations, the security threats that may be posed by a pool of removed officers, and the potentially negative repercussions of a failed vetting process that not only misses its stated objectives but may legitimize abusive officers and further erode public trust.
There are many contexts in which a great deal of political capital is misspent in discussions about vetting when it is plain that, long before an effective vetting program can be set in place, it is crucial to take measures as basic as establishing a registration census for the members of security institutions, as in some such contexts no one is sure even about the membership of security institutions. A census is not only less likely to awaken opposition, it is also a sort of ‘gateway’ condition for discipline and oversight in the security sector, and an institutional condition for other reforms including vetting.
Other strategies for bringing a certain degree of control over the membership in security institutions are also called for. One way to diminish opposition to vetting in some contexts—not all—and at the same time to reduce the demands on the system (including by reducing the number of people to be screened) is to target the programs more narrowly, or to roll out the programs incrementally. One can adopt a “targeted vetting” approach, focusing first on categories of officials, certain ranks or units in an institution - rather than covering all personnel - aiming at dismantling criminal networks, removing those who are likely to put up the greatest resistance, so that ‘spoilers’ are removed early on, or empowering units within the institution that have a specific responsibility to combat criminal activity and ensure accountability—such as an internal discipline function—, thereby contributing to preventing recurrence. In other cases, by contrast, fine-tuning a vetting strategy first, accumulating experience and information—and letting other reforms of the security sector take root—before addressing the most controversial cases might be more beneficial. Surprisingly, this alternative of targeted vetting with different incremental paths has received little systematic attention. As in the case of other transitional justice interventions, vetting would actually profit from the design of a corresponding strategy.
Variations of “indirect vetting” such as creating incentives (both positive and negative) for retirement or resignation may be adopted in contexts in which more traditional forms of vetting are effectively opposed. Such "indirect" strategy may seek to diminish resistance not merely through ‘targeting’ but also through the adoption of “soft” forms of vetting which would allow people to resign their positions quietly, as well as “indirect vetting”, which include strategies promoting generational renewal, forcing some officials to vacate their positions, including lowering the retirement age or creating incentives for early retirement or resignation.
I also would like to stress the importance of focusing vetting criteria on the integrity of personnel, particularly their human rights record. Vetting in transition can contribute to and prepare for, but cannot substitute for and should not be confounded with, regular human resources management in security institutions. The aims of vetting in the context of transitional justice primarily relate to the integrity of personnel, less to their competence.
There is plenty of room for creative thinking about ways of overcoming or mitigating the challenges faced by vetting processes, but I also would like to stress that there are also many reasons to think about non-recurrence in the context of the security sector, not reducing the alternatives to vetting. Other preventive measures in the security sector are also critically important and should receive further attention.
In the present report, I describe certain aspects of security sector reform that are particularly relevant to prevent recurrence and provide a series of recommendations. In particular, I recommend that national constitutions should define the role and functions of the police, the military, and the intelligence services and other security institutions, to clearly differentiate between the external defence functions of the armed forces and the internal security functions of the police. In addition, measures need be taken to prevent the continued involvement of non-state armed groups in human rights violations including their disbandment; the disarmament, demobilisation and social reintegration of their members; or the vetting and integration of their members into statutory security institutions. I also urge States to strengthen the civilian control over the security sector, in particular the military, by establishing a functional civilian ministry of defence, and to put in place effective oversight, monitoring and accountability mechanisms in the security sector. I encourage the rationalization of these institutions more in line with publically scrutinized risk assessments. Specific recommendations address the critical importance of narrowing military jurisdiction to disciplinary offences only, and the removal of military prerogatives, such as ‘tutelary powers’, eliminating such areas of military autonomy.
In my report to the Human Rights Council (A/HRC/30/42), I also present the key activities undertaken from July 2014 to June 2015, including a country visit to Burundi (see A/HRC/30/42/Add.1; A/HRC/30/CRP.1) and an advisory visit to Sri Lanka1. I take this opportunity to thank both Governments for their invitations and cooperation. Regarding future country visits, I am pleased to announce that I will undertake a country visit to the United Kingdom of Great Britain and Northern Ireland in November 2015. A further invitation was extended by the Government of Côte d’Ivoire. Other pending visit requests concern Brazil, Cambodia, the Democratic Republic of the Congo, Guatemala, Guinea, Indonesia, Japan, Kenya, Nepal, Rwanda and Sri Lanka. I look forward to engaging in a fruitful cooperation with these Governments in order to shortly schedule my coming official visits.
I thank you for your attention and look forward to our dialogue.
1. See http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15820&LangID=E.