Text: Linda A Thompson
Photo: Bas Bogaerts
This article was previously published in HENRI Magazine.
Commentators contend that if Europe, the birthplace of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, is able to violate refugees’ human rights with such impunity, those standards have lost all relevance.
A human rights mirror
According to Smis, that’s looking at things in reverse. “More than ever, these human rights standards are relevant for what is happening: not only the refugee crisis but so many other things,” he says.
Human rights in particular, he says, offer the framework that allows us to identify abuses, hold governments accountable and take them to task when they commit abuses. “These standards are a kind of mirror that explains to states: ‘Look, this is what you have to live with and uphold, and if you don’t, well, then you are violating them,’” he says.
A moral dilemma
International human rights research, the discipline Smis practises, studies the conventions, charters and declarations that enshrine human rights, as well as their application. “We start from the sources of international human rights law, and we try to interpret the instruments and see what they mean in practice,” he explains, pointing out that such research offers judges, lawyers and NGOs the tools to apply the human rights legislation in practice. “That’s important, because you explain what the law is saying,” he says. “To apply the law, you need to know its contents and you need to know how it can be applied – what are its limits, how to interpret certain provisions and analyse how judges have applied it.”
Smis should know: he has spent more than two decades in human rights research. Initially, however, his career took a different route.
After completing a master’s degree in international and comparative law at VUB, Smis he joined a Brussels law firm in the early mid-1990s, where he mostly took cases that revolved around refugee law and immigration law. Smis, however, wanted to practise human rights law and international law more broadly, and ideally combine the two.
I knew many people who had been killed during the genocide
These doubts were compounded by what he describes as a moral dilemma. The firm he worked for took cases representing individuals who had perpetrated human rights abuses during the 1994 Rwandan genocide, and Smis too was called upon to defend such clients. “I knew so many people who had been killed during the genocide, so it was a very difficult question for me to be involved as a lawyer to defend those who had committed extreme human rights abuses.”
Growing up, Smis spent protracted periods of time in both Rwanda, Congo and Belgium. His father, a director of a local mining company, was Belgian and his mother was Congo-born, and the family moved around between the three countries depending on where the professional activities of Smis’ father took them. When Smis was 18, he decided to attend university in Belgium, a move he describes as an "obvious choice" at that time.
A handful of years later, back at the Brussels law firm, Smis made up his mind: he couldn’t stay there. He would enter the world of research instead. His entrance into academia went more smoothly than he could have hoped: he joined a four-year PhD research project and was promoted to full professor soon after at the age of 33.
Walking the walk
The red line in Smis’ career since then has been to let his academic work also bear fruit on the ground. He identifies as a human rights researcher, lawyer and activist; as a man with a mission. “As a human rights lawyer, you are often also a human rights activist. It’s something you do because you believe in it,” he says. “You want to help people; you want to train people to be able to apply human rights.”
Over the last two decades, Smis has walked that walk. With a couple of other professors, for instance, he launched a project with the Catholic University of Bukavu in the Democratic Republic of Congo, using federal funds distributed by the Flemish Inter-University Council. Massive human rights violations took place in the eastern part of the erstwhile Belgian colony between 1994 and 2003, and five million people are estimated to have died in the conflict. “We created a human rights centre in Bukavu to monitor human rights violations, to train people to respond to these human rights violations and also to do research at PhD level,” he says.
The centre offers a year-long postgraduate law degree in international human rights law, and Smis teaches intensive two-week courses to groups of 20 to 30 students there every year, during the Easter or summer holidays. On those trips he teaches as much as six hours a day, “to teach as much as possible within a couple of weeks”, he explains. His students are typically local judges, lawyers, lawmakers, human rights defenders and NGO officials.
“Through training these people who are really involved, we will have people with greater expertise in human rights,” he explains. “If judges can better apply human rights law, if people in the police or in the army are more conscious of human rights, this might change the situation on the ground.”
“Through training these people who are really involved, we will have people with greater expertise in human rights,” he explains. “If judges can better apply human rights law, if people in the police or in the army are more conscious of human rights, this might change the situation on the ground.”
Smis also co-founded a non-profit organisation to help local educators teach human rights in secondary schools – the Flemish Organisation for Human Rights Education. (www.vormen.be) His desire to make a difference motivates him to supervise a dozen PhD students from around the world, and to take the attendant logistic and technological challenges in his stride – even when that means rescheduling late-night Skype video calls with a researcher in the DRC because the electricity there has cut out.
A world in flux
Smis entered the world of human rights research when the West was in a state of flux, with the end of the Cold War and the break-up of the Soviet Union resulting in new power lines. These major geopolitical events called for a reckoning with the traditional human rights doctrine. “This was a democratisation period in international relations, and self-determination played an important role in that,” Smis says.
The right to self-determination had traditionally been defined as the right to be decolonised in the 1960 and 1970s. Over the two next decades, however, there was a push for reinterpretation, to explore whether this could be defined more broadly as the right for independent peoples to secede from existing countries – for instance, the Catalans from Spain or the Flemish from Belgium – or as the basis in international law for democratic governance.
“We started to rethink self-determination as a right; we posed the question of what the right to self-determination could mean in another approach,” Smis explains. “Self-determination is not only about becoming independent; it is also about peoples deciding for themselves how they want to be ruled and governed, through democratic means. The right to democratic governance entered into the realm of international law. That was something very new, as until then international law had been interested only to a limited extent in how states were organised,” Smis explains.
This reinterpretation also meant a shift in the traditional Western emphasis on human rights as individual rights – the right to freedom from discrimination, to be free from torture – to a collective human rights approach. “I started to focus on collective rights, so groups who possess rights, which is in contrast to most of human rights research,” he says.
Indigenous peoples
Today, Smis still focuses on collective human rights in his research, and the rights of indigenous peoples in particular. His research developed in tandem with a growing attention to the right of indigenous people at the international level. These awareness-raising efforts culminated in the UN’s adoption of the Declaration on the Rights of Indigenous Peoples in 2007, the result of two decades of discussions. 143 UN member countries agreed that particular rights for indigenous peoples should be recognised; for instance, the right not to be assimilated and the right to use traditional medicines and health practices.
The question is, how do these indigenous peoples themselves perceive their rights?
As part of one of his current projects, Smis is examining how the indigenous peoples of Guarani and Mapuche in Latin America perceive their land rights and access to resources. The 2007 Declaration on the Rights of Indigenous Peoples confirmed their rights to lands, territories and resources, Smis explains. “But the question is, how do these indigenous peoples themselves perceive these rights? Do these rights recognised at the international level mean the same as what the indigenous peoples traditionally see as their rights?”
The research project, which Smis is working on with two colleagues, one of them a member of an indigenous community, attempts to address these questions by focusing on such written sources as poems, songs and letters published by and about Guarani and Mapuche over the past three centuries.
The tentative conclusion is that the Guarani and Mapuche conceive their land rights differently. “In our Western world, land and land rights are closely linked to property and property rights. We also see our property rights as something that has commercial value, something that you can sell for money,” Smis explains. “For the Guarani and Mapuche, in contrast, property has value because you can use it, and because their ancestors used it, their descendants will use it, the entire community uses it,” he says.
A shifting focus
With his research and his work as an activist, Smis continually tries to strengthen the human rights framework. By shifting the focus from individual to collective rights, he has bolstered it against criticisms that human rights have too Western a focus on individual rights only. His conviction is that looking at human rights from a perspective other than that of the West might just strengthen the framework as a whole.
“Human rights at the international level very much have a Western content, but this doesn’t mean other cultures do not know the concept of human rights; they exist in all kinds of societies,” he says. That’s why it’s interesting to look at human rights not just from an international perspective, but also from a regional one, he argues.
It’s perhaps also why he sounds a hopeful note when asked about the human rights dilemmas in our increasingly diverse society, while admitting the challenges ahead are great. “More and more, we see people from different religions, different cultures and societies in Europe, and the question is: How can we manage this? Is there not a tension between the right to religion and the right to free speech, for instance?” he says.
Nevertheless, Smis is cautiously optimistic that human rights will adjust with developments in society at large. “We see in daily life that things are changing slowly, but it is a constant search for new balances, between different types of cultures, and where you have to learn to live with diversity,” he says. Some might argue that such a balance is but a fool’s dream, but Smis believes in a consensus: “Everything will depend on the conversation in society at large and the consensus that will ultimately flow from this,” he says. “Every country will respond to this differently and different paths will be taken depending on its political culture.”