JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(11) Human Rights

Human Rights Watch demands US criminal probe of CIA torture

TORTURE

HR11

UN action on human rights

 Early on, the UN established a Commission on Human Rights initially composed of nine core individual members. These individuals proposed that Commission members should act as independent experts rather than present the views of their governments. The governments themselves rejected this proposal. The UN member states decided that the Commission should comprise governmental representatives from 18 elected UN member states. This membership of government representatives was expanded to 32 in 1967, and later to 53 members. In 2006, the Commission was abolished and replaced with a 47-member Human Rights Council.

Before examining the new Council, we might pause to consider what the Commission achieved during its 60-year history. The Commission's agenda has fluctuated over the years, responding to the shifting balance of power between its member governments.

The first years of the Commission's work focused on standard setting, which it accomplished through the drafting of the Universal Declaration and the International Covenants. With the arrival of members from the developing world in the 1960s, issues of racial discrimination in Southern Africa and the Israeli occupation came to the forefront of the Commission's agenda.

Following concern over the 1973 coup in Chile against the Socialist Government of President Allen de and the associated human rights violations in Chile and in Argentina, the Commission's agenda adapted in the 1980s to include public and confidential discussion of such country situations.

The Commission developed a series of ‘special procedures' for monitoring violations in selected countries, through individuals acting either as country or thematic experts. These experts submit reports to the relevant UN bodies. They undertake country visits which are the subject of separate reports, and, in addition, they correspond with governments through 'urgent appeals' and 'letters of allegation'. These 'communications' allege human rights violations and generate some responses from governments. (In 2005, the response rate was 46 %.) Even where the faxes and letters are ignored or dismissed, it is clear that the process of putting governments on notice that the UN's watchdogs have been alerted has led to releases and changes in policy. By any account, the work of these pro-bono human rights experts provides a remarkable tapestry of human rights information, analysis, and recommendations.

 

Situations subjected to UN special procedures

 

Afghanistan, Belarus, Bolivia, Burundi, Cambodia, Chad, Chile, Cuba, Democratic People's Republic of Korea, Democratic Republic of the Congo/Zaire, El Salvador, Equatorial Guinea, former Yugoslavia, Guatemala, Haiti, Iran, Iraq, Liberia, Myanmar, Nigeria, Occupied Kuwait, Palestinian territories occupied since 1967, Poland, Romania, Rwanda, Somalia, Sudan, and Uzbekistan.

Thematic expert mechanisms in order of their creation Enforced or involuntary disappearances; extrajudicial, summary or arbitrary executions; torture and other cruel, inhuman or degrading treatment or punishment; freedom of religion or belief; mercenaries; sale of children, child prostitution and child pornography; arbitrary detention; internally displaced; racism and xenophobia; freedom of expression; right to development; violence against women; independence of judges and lawyers; structural adjustment policies and foreign debt; toxic and dangerous products and wastes; right to education; children in armed conflict; restitution, compensation and rehabilitation for victims; extreme poverty; migrants; right to food; adequate housing; human rights defenders; indigenous peoples; right to health; racial discrimination faced by people of African descent; human rights and counter-terrorism; minority issues; international solidarity; trafficking in persons; human rights and transnational corporations and other business enterprises.

 

Why was the Commission abolished? The perception started to grow in 2001 that a bloc of states was shielding themselves and their allies from being condemned by the 53-member body. It was alleged that governments were seeking election to the Commission in order to table procedural motions and swap votes to insulate themselves from condemnation.

This perception lay behind the campaign to reform the elections process to the Commission. The result was the new Human Rights Council. The Commission itself, while providing a forum for such reporting, had come to be seen in some quarters as a place where governments banded together to prevent collective condemnation of their own records. The criticism of the Commission was not only related to the image of some members of the Commission but also to the Commission's collective failure to act in certain situations. On the one hand, the head of the US delegation, Jeane Kirkpatrick, complained in 2003 that no resolution had been passed 'condemning repression in Chechnya, or slavery and repression in Sudan, or murder and violation of rights in Zimbabwe, or the continued victimization of the Falun Gong in China'. On the other hand, several observers, such as Human Rights Watch, drew attention to the failure of the Commission, not only over situations such as those in Zimbabwe and China, but also over the resistance by the United States and the EU to allow the Commission to consider properly the invasion and occupation of Iraq and the human rights situation in Afghanistan.

The criticism was that the UN body had become selective in its examination and that the selection was being operated by the same governments that ought to be condemned. Commentators repeatedly pointed out, in what became a cliché, that the foxes were guarding the chicken coup.

The resulting reform was centered on making the election process for membership of the human rights body more difficult. In 2006, the 191 UN member states elected by majority, and in a secret ballot, the founding members of the new Human Rights Council.

Two features of the new Human Rights Council are worth mentioning here. First, by sitting throughout the year in short blocks for no less than ten weeks (rather than in one six-week block), it is hoped that there can be more sustained scrutiny of  situations. Second, a new procedure called 'universal periodic review' is to be implemented in 2007, in which the Council will review every UN member state's compliance with its human rights obligations and commitments. The theory is that this procedure will avoid the Commission's previous selectivity by examining every state in the world with respect to the full range of its human rights obligations. The Council's founding document provides that it will be responsible for 'promoting universal respect for the protection of all human rights and fundamental freedoms for all'.

In other words, universal periodic review will look at all rights in all countries. It is perhaps too early to say whether these new arrangements will lead to a more satisfying set of condemnations. As was suggested above, it is perhaps a vain hope to expect governments to act as objective human rights evaluators. Human rights foreign policy, at the UN or elsewhere, will always be about balancing concern for human rights with other competing interests.

 

The media tends to focus on the output of UN bodies such as the Commission, and now the Council; but to concentrate on the behavior of diplomats at the United Nations is to overlook much of the UN's activity on human rights. In addition to the UN's monitoring of states through the expert treaty bodies and the special procedures, the UN has expanded its attention to human rights in further important contexts. First, a number of UN field operations have been established with a human rights mandate to offer protection, monitor the situation, and offer assistance (most notably in Cambodia, El Salvador, Guatemala, Haiti, Rwanda, Burundi, Sierra Leone, Liberia, Sudan, Democratic Republic of Congo, Colombia, and Nepal). These operations have enjoyed some success in implementing human rights protection and achieving improvements on the ground. Second, the UN programmes and funds that deal with issues such as children, women, health, and development have started to use human rights principles to underpin their work.

Occasionally, the UN is even able to go beyond what the member states have explicitly agreed to do and say. We can detect here a sort of ‘supranational' approach to human rights. The UN Secretary-General, the UN High Commissioner for Human Rights, the Human Rights Commissioner for the Council of Europe, and other senior figures from the secretariats of international and regional organizations can operate in ways that go beyond the simple secretarial fulfillment of an inter-state mandate. They can speak up and speak out when governments are unwilling to do so. Much will depend on the determination of the individuals recruited by the relevant inter-governmental organization.

For example, Mary Robinson, as the UN High Commissioner for Human Rights, issued a statement on Chechnya in 1999 expressing concern about the fact that 'indiscriminate and disproportionate use offered is causing high civilian loss of life and injuries'. At the inter-state level at that time, no inter-governmental body could summon a majority to raise a similar level of concern or take concrete action.

It is telling that even the United States, which has a stated human rights foreign policy, will at times distinguish its approach from that of the UN High Commissioner for Human Rights. Governments may feel the need to 'pull their punches' in terms of lecturing other countries on how to behave or protesting violations of human rights by the security forces. On a tour of Africa by the US Secretary of State, the New York Times reported one member of the party as stating: We don't do Mary Robinson.'

The report continues 'an allusion to UN High Commissioner for Human Rights, who has no other agenda. In Africa today, the United States has many other interests, including the promotion of stability and security, which often means the use of methods not appreciated by human rights groups.'

The fact that an office such as the Office of the High Commissioner for Human Rights has no strategic military or trade interests means that there is a possibility that issues will be raised when this would otherwise be precluded by foreign policy considerations (even in an inter-governmental forum dedicated to human rights). Of course, the Office of the High Commissioner for Human Rights will feel it has to work within the parameters of what is acceptable to governments or risk losing budget, cooperation, and support. But the Office has created some room to develop its own voice and ought to be expected to articulate concern, even outrage, at human rights violations wherever they occur. In recent years the Office has grown in size and ambition. It now has over 500 personnel at its headquarters in Geneva, and about 500 personnel around the world in field presences in places such as Cambodia, Colombia, and Nepal. There is an attempt to make human rights a central part of the UN's work in these places as well as in larger operations such as the one in Sudan. The focus is on shifting from studies and seminars to in-country capacity-building and reinforcing the rule of law worldwide.

 

Ken Roth, Human Rights Watch, April 2001

 

The latest batch of new members illustrates how poorly this system works. They include such dubious paragons of human rights virtue as Algeria, the Democratic Republic of the Congo, Kenya, Libya, Saudi Arabia, Syria and Vietnam. Needless to say, such governments do not seek membership out of a commitment to promote human rights abroad or to improve their own abysmal human rights records. Rather they join the commission to protect themselves from criticism and to undermine its work.

 

 

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