International human rights law responsibilities of non-governmental organizations: respecting and fulfilling the right to reparative justice in Rwanda and beyond
Noam SchimmelBonavero Institute of Human Rights, Faculty of Law, University of Oxford, UK, Elliott School of International Affairs, George Washington University, Washington, DC, USA and Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University, Montreal, QC, Canada
This paper asks what are the potential responsibilities to respect, protect, and fulfill international human rights law (IHRL) of a particular class of non-State actors: non-governmental organizations (NGOs). The paper focuses on those NGOs pursuing development in a post-genocide/post-mass-atrocity transitional justice context acting simultaneously in partnership with State governments, as proxies, and providing essential public goods as part of their development remit. It uses post-genocide Rwanda as an example to illustrate how respect and fulfillment of the IHRL pertaining to reparative justice are hindered by failing to hold NGOs responsible for IHRL. This paper 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 IHRL and Serious Violations of International Humanitarian Law. These are centered upon five principles: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. 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 for genocide survivors 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, furthermore, that current soft law demands that NGOs should never enter into a contract for provision of development aid with a sovereign that knowingly entails – whether by commission or omission – a violation of IHRL. 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. There is potential for new soft-law moral and social standards regulating NGO behavior to become legal obligations, if they eventually achieve widespread status and practice as customary international law.
Thank you to the faculty of the Oxford Master's in International Human Rights Law program at Oxford University and its directors, Professors Andrew Shacknove and Nazila Ghanea, for their outstanding and inspiring teaching and leadership of a unique program which I am grateful to have had the opportunity to experience. Thanks also to my cohort for their contributions to learning and the sincerity and vigor of their commitment to human rights, accompanied by humility, openness, humor and inimitable joie de vivre that made learning with them and from them an enormous pleasure and a touchstone in my human rights education. I had the good fortune to be taught by the following faculty members whose classes were central to my human rights education and who model ethical and scholarly integrity, dedication to their students, and passionate commitment to human rights as values, laws, and practice: Fareda Banda of the School of Oriental and African Studies and Oxford, Patricia Sellers of the International Criminal Court and Oxford, Pablo De Grieff of New York University and Oxford, Andrew Shacknove of Oxford, and Wade Mansell of the University of Kent and Oxford. Carolyn Patty Blum of the Center for Justice and Accountability provided feedback in the early stages of the drafting of this paper. I am solely responsible for its content. The Centre for Human Rights and Legal Pluralism, McGill Faculty of Law, where I was an O'Brien Fellow and a Visiting Fellow and where I am now an Associate Fellow, the Bonavero Institute of Human Rights, Oxford Faculty of Law where I was a Research Visitor, and Kellogg College, Oxford where I was a Visiting Fellow provided exceptionally warm, welcoming, and engaging contexts for research on human rights. I am grateful to each of them for deeply meaningful and rewarding opportunities for learning in a collegial, communal environment.
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