• The Human Rights Council Gets More Respect

    by  • September 14, 2012 • BOOKS

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    Migrants locked up in a camp in Libya.

    Migrant laborers, mostly from sub-Saharan Africa, can spend entire days locked up while they wait at the Burashada camp in Gharyan, Libya. INTERNATIONAL FEDERATION FOR HUMAN RIGHTS

    The visibility of human-rights violations by the Syrian government amid the current turmoil owes much to the United Nations, particularly to its Independent International Commission of Inquiry, led by Paulo Sérgio Pinheiro, a Brazilian lawyer, public official and professor.  Such commissions are part of a growing number of tools used by the UN to promote human rights globally and nationally, where principles must be reconciled with practice.

    The latest report by the UN’s commission, completed in August, will be discussed at the Human Rights Council on Sept. 17.  The commission found reasonable grounds to believe that government forces and – somewhat less – the shabiha militia “had committed the crimes against humanity of murder and torture, war crimes and gross violations of international human-rights law and international humanitarian law, including unlawful killing, torture, arbitrary arrest and detention, sexual violence, indiscriminate attack, pillaging and destruction of property.”

    Later this month, the commission plans to submit a confidential list of individuals and units believed to be responsible for crimes against humanity, breaches of international humanitarian law and gross human rights violations to the UN High Commissioner for Human Rights, Navi Pillay.

    A recently published book, “Catalysts for Change: How the UN’s Independent Experts Promote Human Rights,” by Ted Piccone, a Brookings Institution senior fellow, credibly demonstrates that the Syrian case, while certainly outstanding, is not unique in its scope and depth in such regards. Piccone shows how the UN’s so-called “special procedures,” which include individual experts and working groups, are contributing to increased respect for human rights.

    It’s not just rhetoric: based on a rigorous review of official UN documents, thousands of communications to the UN from nongovernmental organizations and individuals and confidential feedback from interested parties, Piccone provides results on 45 cases in at least 33 countries, almost entirely since 2000, covering subjects as varied as preventing deportation in Australia, freeing migrant workers in Panama, releasing a human-rights defender from prison in Saudi Arabia, promoting prison reform in Kenya, removing human-rights violators from the security forces in the Central African Republic, prison sentences in China and more.

    It isn’t easy to assign credit in a linear fashion for the special rapporteur interventions. The cases cited by Piccone probably represent the tip of the iceberg in terms of impact, since there is no systematic documentation of follow-up work or whether recommendations were carried out. Piccone and his associates must have had a hard time finding specific cases of successes, since they considered more than 9,000 communications over 17 years.

    The efforts of special procedures, nongovernmental organizations, governments, intergovernmental experts and officials all play a role in bringing about releases of individuals and changes of the sort detailed in Piccone’s study. Each effort is usually part of a broader campaign, enhancing human dignity and bringing hope, but only some of them actually bring results.

    How did the work documented by Piccone occur, and what does it mean for the future?  For the first time, in 1967, the UN Economic and Social Council authorized the Commission on Human Rights to “examine information relevant to gross violations of human rights and fundamental freedoms.”  The initial mandates adopted by the UN covered Southern Africa and the Occupied Palestinian Territories. The third mandate, on Chile, occurred after the establishment of a military regime and opened the way for adoption of more special-procedures mandates.

    The system of special procedures has continuously evolved, and the number of mandates has grown considerably over the years. Mandates may be country-specific, as currently on Iran, or thematic, as in the working group on enforced or involuntary disappearances, which has played a critical role for many years.  Thematic mandates are not, however, limited to examination of norms but may often involve detailed dialogues with relevant public and nongovernmental organization authorities and examination of country records.

    As of December 2011, there were 35 thematic mandates and 10 country-specific mandates.  The thematic mandates had increased substantially, and the country-specific mandates declined since the year 2000.  In 2012, however, additional country mandates were adopted.

    The special procedures are universal in their concern with all countries and not merely the members of the Human Rights Council. As of December 2011, council mandate holders visited 156 countries and territories. Most countries not visited were small and relatively less important; the notable exceptions, where no special rapporteurs had visited, were North Korea (9 requests pending), Guinea (1 pending), Guinea-Bissau (1 pending), Libya (4 pending), Malawi (3 pending) and Zimbabwe (10 pending).

    Special-procedures mandate holders are appointed by UN member states through the Human Rights Council (previously by the former Human Rights Commission).  Despite their UN “hat,” their work is unpaid for limited periods. They derive moral authority from representing the UN member states and not just the UN Secretariat.  This authority, combined with their independence as individual experts, has given the special procedures the standing they enjoy in the UN and beyond.

    The approaches used by these experts vary according to the situations.  The evidence collected by Piccone suggests that country visits are more effective than written communications, though both methods are used. Increased training of the UN experts and greater openness and rigor in their selection would improve their effectiveness. Indeed, Piccone’s book and a Brookings research report he wrote on strengthening UN special procedures could also serve as training materials.

    Ted Piccone of Brookings Institution

    Ted Piccone, the author of "Catalysts for Change."

    The number and scope of the mandates grew steadily in the 1980s and 90s.  Somewhat surprisingly, the end of the cold war appears not to have been a major turning point in their development.  Russia was reserved about establishing special procedures and continues to be, at best, cautious, having recently denied a request for a visit by the new special rapporteur on freedom of assembly.  As of December 2011, Russia received 8 country visits; 15 visit requests were also under review by the country officials.

    The 1993 UN Vienna World Conference on Human Rights gave a strong push forward in UN human-rights work, leading to the creation of the Office of UN High Commissioner for Human Rights.  But the conference did not appear to have had a major effect on the special procedures. Today, mandates are often adopted by the Human Rights Council by consensus, so that the opponents do not stand out as sharply as in the past.  Furthermore, thanks to vigorous diplomacy by the US after the Obama administration was elected as a member, the tendency toward voting in regional blocs has been eroding, says Suzanne Nossel, a former deputy assistant secretary of state, in a paper for the Council on Foreign Relations.

    Continuous attention is still needed by governments and civil society groups committed to promoting  human rights and strengthening and expanding the special procedures. Thanks to some diplomacy, Cuba succeeded in having its country-specific mandate terminated in 2007. It continues to advance proposals to weaken the council’s mechanisms.  The mandate for Sudan is scheduled to end in 2012 unless action is taken to renew it.

    Fortunately, the muscular action exercised by the US in the council in the past several years, including work done behind the scenes, does not preclude objective, critical commentary by UN experts on US human-rights performance. UN monitors are, to some US officials, unwelcome visitors, as demonstrated by the government’s refusal to let them meet privately with detainees at Guantánamo Bay, according to accepted practice. However, the UN expert on rights of indigenous people completed a 12-day visit of their homelands in the US last May. At the press conference after his field visit, the expert commented on the “profound hurt” that is still felt by indigenous people in the US and observed that “much healing” remains to be done.

    Nongovernmental organizations at the UN in New York, Geneva and beyond can do a lot to improve the special procedures, starting with making the UN experts and their work more widely known.

    For example, the United Nations Association of the USA gave its 2011 Leo Nevas Human Rights Award to Asma Jahangir, a Pakistani human-rights activist, lawyer and UN special procedures expert.  Some months later, the UNA-USA human-rights task force joined others in publicly calling upon Pakistani authorities to desist when Jahangir was threatened with jail. Similarly, the 2012 Leo Nevas Award will be granted to Paulo Sérgio Pinheiro of the Commission of Inquiry and special rapporteur on Syria.

    Nongovernmental organizations and the media can also amplify the voice of UN experts nationally, where the real actions to promote human rights take place, as well as internationally. Public dissemination of carefully gathered and credible evidence with a UN imprimatur protects and strengthens the experts while increasing their standing, leaving them less vulnerable to criticism. Civil society groups can help the special procedures by nominating highly qualified candidates as UN experts and drawing attention to weaknesses of candidates, where appropriate.

    Those who support a growing Human Rights Council role should work to strengthen the special procedures by focusing on specific cases. In this spirit, it is noteworthy that additional country mandates on Belarus and Eritrea were created just weeks ago, including, for the first time, adoption of a resolution containing the creation of a new country-specific mandate holder.

    The lesson here is that coalitions of the willing and cooperation among countries through technical assistance on specific human-rights weaknesses can be more useful in spurring changes in domestic policy and practice than dramatic confrontation and public shaming.  The more confrontational the practice in the council, the more likely a country will respond defensively. Yet, objective evidence collected by UN experts can provide a strong stimulus to change, as Piccone documents.

    Encouraging qualified country candidates to be elected to the council by the UN General Assembly and demanding the withdrawal of inappropriate country candidates is another important step. Nongovernmental organizations can have only a promotional and advisory role in this connection. But shaming country delegations for voting for unqualified candidates can be useful, as in the case of the failure of Belarus (2007), Sri Lanka (2008), Azerbaijan (2009) and Iran (2010) to be elected.

    Fortunately, the need this year to defeat Sudan, the only country whose sitting head of state has been indicted by the International Criminal Court, was obviated when Kenya presented its candidacy, even after the African Group had endorsed Sudan, and Sudan decided to withdraw its candidacy.

    Outside observers and the media are beginning to take the special procedures and the council more seriously, especially since the George W. Bush administration criticized the council and the US refused to stand for election in the body. In the journal Foreign Policy, James Traub, a former New York Times Magazine contributor, wrote an essay in June in which the headline says it all: “UN Human Rights Council Condemns Actual Human Rights Abusers!”

    Even the neoconservative Heritage Foundation noted “modest achievements” by the council, despite arguing that the US should not stand for re-election. Piccone’s contacts suggest that the council’s work is gaining support from human-rights activists in countries like Venezuela, Zimbabwe, India and Brazil.

    The future of the special procedures depends greatly on the council’s composition, which consists of 47 members elected by the majority of UN members through direct and secret ballot in the General Assembly. In voting, the assembly is expected to take into account the countries’ role in protecting human rights. And membership is distributed geographically: Africa, 13 seats; Asia, 13 seats; Latin America and the Caribbean, 8 seats; Western European and other countries, 7 seats (including the US); Eastern Europe, 6 seats. Members serve for three years and are not eligible for immediate re-election after serving two consecutive terms.

    Paulo Sérgio Pinheiro, special investigator on Syria

    Paulo Sérgio Pinheiro, a Brazilian lawyer leading the UN human-rights inquiry on Syria.

    Now is the time for nongovernmental organizations to take a major step in the November elections. With Sudan’s withdrawal, it appears that the most important contested seat is in the Western Europe and other countries group, known as the Weog.  The US, up for its second term, is running a competing candidacy among 4 others – Greece, Germany, Ireland and Sweden – for 3 vacancies.  It’s ironic that the US has rightly promoted competitive voting, complicating the task of ensuring its own re-election. Unless it is re-elected, important opportunities to improve the council and its special procedures are likely to be lost.

    As proposed by Human Rights Watch, a public forum at the UN would allow candidates to justify their election based on their human-rights records. If the UN High Commissioner for Human Rights does not encourage such a forum, the nongovernmental organization community at the UN could do so.

    Systematic bias against Israel remains the most formidable challenge to making the council a fully credible human-rights conscience. Despite calls from the US for rights violations in all countries to be considered under a single agenda item, the council decided to continue to set aside one separate agenda item dedicated to Israel and another generic item on violations to address all the other countries. Israel alone is forbidden membership in a UN regional group, making it ineligible for election to the council, or even to attend region-specific informational briefings by UN rights officials.

    The number of resolutions and specialized and follow-up reports focused on Israel continues to outnumber any other country, amounting to nearly half of all country-specific resolutions adopted by the council. And though the continuation of mandates for country-specific rapporteurs is reviewed annually (or even less often), the rapporteur on the Palestinian territory is authorized to continue until the end of the conflict – and so has never needed reauthorization.

    Fortunately, the focus on Israel has declined in the past several years, mostly as a result of US engagement.  Loss of the US seat in the elections would therefore reverse this trend and return council attention disproportionately to Israel and give less attention to other countries whose human rights records are much more egregious.  The recent decision by Israel to terminate all cooperation with the council, after yet another demand for a fact-finding commission, can only worsen the situation.

    US foreign policy appears to be more supportive of UN human-rights activities. Piccone’s Brookings report was endorsed by an experts working group, which including several former senior officials of Democratic and Republican administrations. Another encouraging sign is that the UN human-rights treaty on disability may be ratified in the Senate, after action taken by the Senate Foreign Relations Committee.

    The coming year is a time of opportunity for human rights in the UN, especially for improving the special procedures.  As a result of the system of rotating membership in the council, China, Cuba and Russia  must drop out in 2013 because they need to wait a year before they can be re-elected.  This means that the possibilities for constructive action are likely to increase, especially if the US is re-elected and Kenya wins the seat for the African Group. Now it’s up to governments, with appropriate lobbying and support from the nonprofit group community, to make this happen.

    “Catalysts for Change: How the UN’s Independent Experts Promote Human Rights,” by Ted Piccone; B008EY8C36

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    About

    A. Edward Elmendorf, who lives in Washington, is a former president and chief executive of the United Nations Association of the USA. He is a member of UNA's Leo Nevas Human Rights Task Force and spent most of his career, before retiring, at the World Bank.

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