Thomas Pegram University of Oxford 27 July 2010 Weak institutions, rights claims and pathways to compliance: the transformative role of the Human Rights Ombudsman

National human rights institutions ‘They have a crucial role to play in the effective implementation of international human rights standards at the national level by promoting the development of laws and practices consistent with those standards and monitoring their implementation. National human rights institutions can thus strengthen national protection systems by translating international human rights norms in a way that reflects national contexts and specificities.’ Secretary General Ban-Ki moon (August 2009)

The argument Why does the ombudsman matter, how does it works in practice, and, crucially, under what conditions can it effectively advance human rights claims, especially of those most marginalized in society? (1) development of formal design principles is important in explaining effectiveness. However, (2) the informal dimension of ombudsmen’s relations with organized state and social actors and rules of access across accountability arenas is often decisive.

Broader institutional settings ‘…translating international human rights norms in a way that reflects national contexts and specificities.’ ‘Brown areas’ in Latin America where formal rules of the game bear little resemblance to widely accepted informal practices. Problematise the idea of weak institutions, rights claims and compliance. Breadth and depth of political openings

Regime classification and levels of violence

The human rights ombudsman (and commission) at point of origin INDEPENDENCEPeruIndonesiaPOWERSPeruIndonesia Constitutional entrenchmentYesNo Broad and unrestricted rights mandate Yes Designation by the legislatureYesNoMandate to receive complaintsYes Election threshold of qualified majority YesNoConstitutional reviewYesNo Budget allocated by the legislature YesNo Legal prerogatives in matters of human rights (habeas corpus, amparo) Yes ImmunityYesNoEx officio investigationsYes Term limit of five years +NoYesOversight of militaryYes No dismissal without good cause YesNoEnforceable obligation to cooperateNo Possibility of reelectionYes Explicit IHRL mandateYes

Public legitimacy

Responsiveness: total complaints received by ombudsmen in Latin America

Obstacles to engagement “…we have not yet resolved the matter of how to be the Ombudsman of the most vulnerable.” Penetration of rural zones Capability of claimants Insertion into pre-existing frameworks Local perceptions of the ombudsman Inflated expectations and disillusionment

Pathways to compliance ArenasActorsRules of accessOutcomes Legal accountability Judicial branch Constitutional Tribunal Prosecutors office Oversight agencies Habeas corpus Amparo Habeas data Amicus Curiae Collective actions Legal sanction Material reparations Urgent remedy State accountability Executive branch Ministries Legislative branch Regional and local government Legislative projects Annual reports Special reports Monitoring and supervision Political sanction Emulation Demonstration effects Altering behavior norms Social accountability NGOs Media Civic associations Social movements Public mobilization Media exposure Education and training workshops Indirect ‘material consequences’ Reputational costs Public censure

Influence in context: causal mechanisms (1) Expansive interpretation of mandate ‘Play’ in the interpretation of formal rules Anomalous ombudsman features Commitment to poverty and social exclusion (2) Leadership of individual Ombudspersons: Internal functionings: ‘organizational mystique’ External reputation Ability to navigate official and social interests

The anomalous ombudsman: conflict prevention and response Design: mandate expressly guaranteed during States of Emergency Interpretation of mandate: unstable political regimes displaying persistent low-intensity violence and armed conflict Activation of mandate: Monitoring and early-warning capabilities (Colombia and Peru) Preventative constitutional actions (Peru) Intervention: ‘bear witness’ (Peru and Colombia) Prosecution for victim reparations (Colombia)