Potential unfulfilled: Strengthening the Council’s approach to country situations

30.05.2016

The Council’s potential to address human rights situations could be better fulfilled through political will, more consistent leadership, triggers for action, and a willingness to stand up for what’s right, says HRW's John Fisher.

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By John Fisher, Geneva Director, Human Rights Watch

From the Commission to the Council

When the UN Commission on Human Rights was dissolved ten years ago, allegations of politicisation and selectivity had long undermined its credibility. It had become perceived as a body where many human rights violators joined forces to protect themselves from scrutiny, while failing to give principled and effective attention to human rights situations of concern. This led then Secretary General Kofi Annan to conclude:

The Commission's ability to perform its tasks has been … undermined by the politicisation of its sessions and the selectivity of its work. We have reached a point at which the Commission's declining credibility has cast a shadow on the reputation of the United Nations system as a whole.[1]

It is for these reasons that its successor body, the Human Rights Council (the Council), was tasked from the outset to ‘address situations of violations of human rights, including gross and systematic violations’ and to be guided by principles including ‘universality, impartiality, objectivity and non-selectivity’ with a view to enhancing the promotion and protection of all human rights.

Ten years into its mandate, the key question remains: to what extent has the Council been able to overcome the challenges faced by its predecessor, and to what extent do issues of politicisation and selectivity still risk eroding its credibility?

First, the good news

There is no question that the Council has made a real difference in bringing global attention to a number of significant human rights violations, and putting in place mechanisms to ensure continued scrutiny.

At its March 2016 session, for example, a new three-person Commission on human rights in South Sudan was created; a resolution on North Korea was adopted without a vote, creating a group of experts on accountability; the mandate of the Special Rapporteur on Myanmar was renewed under item 4 and the mandate-holder tasked to develop a report focusing on reform benchmarks; a joint statement on China brought attention to the crackdown on civil society and human rights lawyers in the country; the mandate of the Special Rapporteur on Iran was renewed and a procedural no-action motion brought by Venezuela to block debate was rejected; a resolution on the Occupied Palestinian Territories requested the Office of the High Commissioner for Human Rights (OHCHR) to compile a database of businesses carrying out specified activities in Israeli settlements; and the mandate of the Commission of Inquiry on Syria was renewed, with a focus on enforced disappearances and arbitrary detention, and calls for ‘accountability for crimes committed’ as an integral part of any peace process.

… but not all good

Significant challenges remain, however. Despite a requirement that members of the Council uphold the ‘highest standards in the promotion and protection of human rights’, the records of many Council members fall short of this standard.

A number of States decline to support country situations without the consent of the State concerned, thereby rewarding non-cooperation, and clearly breaching the Council’s mandate to address gross and systematic violations. Even this standard is applied inconsistently. For example, a number of States backed Russia in declining to support the Ukraine resolution, even though it had the support of the State concerned.

Many States continue to resist scrutiny of country situations under the Council’s agenda item 4 (human rights situations that require the Council’s attention) instead preferring to address even serious violations under item 10 (technical assistance and capacity-building). Technical assistance is certainly warranted where a State acknowledges its human rights challenges and seeks international support to address them, but is hardly appropriate when a State refuses to acknowledge responsibility, and is seeking to deflect scrutiny. At the Council’s 30th session in September 2015, several key States failed to embrace a Dutch proposal for an ‘international independent and impartial mechanism’ on abuses and violations in Yemen. As a result, the Council instead adopted an item 10 resolution presented by Saudi Arabia on behalf of the Arab Group supporting a national investigation process with technical support from OHCHR. Unsurprisingly, avoidable civilian casualties and deaths have continued and accountability remains elusive.

Many States hold the pen under item 10 on resolutions concerning their own country situations, leading to one-sided texts that fail to reflect realities on the ground. In an effort to avoid the item 4 vs item 10 dichotomy, an increasing number of resolutions are brought under item 2 (reports of the High Commissioner for Human Rights), displacing responsibility to the OHCHR, without a commensurate increase in resources.

Lack of follow-up also limits the Council’s effectiveness. While the Special Sessions on Iraq and Nigeria/Boko Haram were welcome, it is concerning that the recommendations of the High Commissioner have not been implemented, and neither situation remains on the Council agenda.

Political considerations continue to trump human rights. When asked why there is not more sustained attention to human rights violations in Azerbaijan and Saudi Arabia, one Western diplomat frankly told me: ‘we all need gas and we all need oil’. UK Prime Minister David Cameron attempted to justify an allegation of vote-swapping with Saudi Arabia for a seat on the Human Rights Council by telling Channel 4 news[2]: ‘it’s because we receive from them important intelligence and security information that keeps us safe’.

While there are many followers on country situations, there are few leaders. The fact that country resolutions are often led by Western States fuels allegations of selectivity, while also allowing these States to escape scrutiny of their own records. Regional and bloc politics often divide the Council, with moderate voices lost or silenced while entrenched group positions dominate. Points of order, no-action motions and other procedural tactics are still employed in an attempt to foreclose debate.

A way forward

There are ways in which the Council can build on its achievements and work to address the challenges it faces in an effective and non-selective way. The proposals that follow, many of which are articulated more fully in a joint civil society paper coordinated by ISHR,[3] do not require institutional reform, but simply principled leadership and the political will to make a difference.

  • Incoming members’ pledge: Incoming Council members could voluntarily take the initiative to deliver a joint statement at each March session outlining the principles by which they pledge to be guided throughout their term. These might include cooperation with the Council and its mechanisms, responding in a timely manner to country requests and communications from Special Procedures, presenting mid-term implementation reports on their Universal Periodic Review (UPR) commitments, defending civil society space and ensuring effective action to prevent and address reprisals, committing to address country situations on their merits and without selectivity, engaging in genuine self-reflection when faced with concerns relating to their own country, and eschewing procedural tactics – such as points of order or no action motions – to foreclose debate, instead expressing themselves through rights of reply. Clearly not all new members would agree to be guided by such standards – and existing members and observers should also be given the opportunity to join – but incoming members willing to do so could lead by example through such a joint statement and begin to raise the bar on expectations for Council membership.
     
  • Trigger mechanisms: In order to reduce selectivity, States could develop and implement a joint commitment to address a situation or country-specific initiative if a certain threshold or key triggers are met. A good precedent exists in a joint statement delivered by the Maldives on behalf of a cross-regional group of States at the 20th session of the Council, in which signatory States ‘voluntarily commit ourselves to be guided by a number of independent considerations when assessing whether a situation or specific issue merits the attention of the Council’. These triggers included ‘whether there has been a call for action by the UN Secretary General, the High Commissioner for Human Rights, by a group of Special Procedures, or another indication of either a chronic or urgent human rights situation’.
     
  • Overcoming the item 4/item 10 dichotomy and establishing clear criteria: In determining what kind of response to a situation of concern is appropriate, the Human Rights Council should recognise the efforts of those that cooperate and engage genuinely, distinguishing them from those that clearly fail to do so. States should overcome the resistance to item 4 consideration, recognising that item 4 is broad and inclusive and can cover a range of situations. In addition, clear criteria should be developed to assess when technical assistance and capacity-building is warranted under item 10. For example, the State concerned should (i) acknowledge the violations that are the source of the Human Rights Council’s concerns; (ii) allow unhindered access to information, including in‐situ by independent actors such as the High Commissioner for Human Rights, UN Rapporteurs, media and human rights defenders; and (iii) demonstrate a verifiable commitment to remedy these violations through concrete action, including with the assistance and continued engagement of the Council.
     
  • Benchmarks: There has been much discussion of bringing increased focus to implementation of Council resolutions. This can be enhanced by including within resolutions concrete benchmarks to identify progress and monitor implementation, and to more objectively assess what future engagement by the Council is warranted. For example, the resolution on South Sudan adopted at the 29th session of the Council failed to create a Special Procedure but did identify benchmarks to assess the need for subsequent creation of a mandate; the resolution on Sri Lanka adopted at the Council’s 30th session laid out a number of needed reforms, and requested the High Commissioner to present an implementation report; and the resolution on Myanmar adopted at the 31st session specifically requested the Special Rapporteur to work with the Government of Myanmar to identify benchmarks for human rights reform.
     
  • Alternative tools and work formats: The country situations faced by the Council are diverse, and require creatively applying a more varied range of tools from the toolbox. Informal briefings by the High Commissioner have provided a useful platform to initiate discussion of country situations that might otherwise escape consideration by the Council. Urgent debates have taken place to address situations of concern, and could be called inter-sessionally as needed, as could roundtables or panel discussions. The voices of human rights defenders from countries under consideration should be routinely integrated into panel discussions. More attention could be given to debate and follow-up to recommendations arising from Special Procedures’ country visits, and the Council might request a joint briefing by relevant Special Procedures to address emerging situations of concern. When a visiting dignitary or head of State requests a ‘special meeting’ to address the Council, the floor should be opened to all stakeholders to ensure a genuine dialogue on the human rights situation in the country.
     
  • Thinking outside the blocs: The ability of States to move beyond the bloc politics of the Council could be enhanced through more cross-regional initiatives, early outreach and dialogue with a broad range of potential partners, an increased willingness of moderate States to challenge group positions that fail to adequately reflect their views, and ensuring that States cosponsor resolutions in their national capacity, rather than being assumed to cosponsor by regional or political bloc leaders.
     
  • Working Group on country situations: States in all regions face human rights challenges, but often political considerations determine which challenges attract Council scrutiny. Consideration should be given to establishing a cross-regional Working Group, consisting of an expert from each UN region, to bring to the Council’s consideration situations in each region that warrant the Council’s attention.
     
  • Reprisals and anti-bullying policy: The Council has appropriately committed to addressing acts of reprisal against human rights defenders who participate in its processes. It is also an open secret that States hostile to consideration of their own country situations have been known to engage in tactics of intimidation, threaten political or economic consequences against States that support resolutions or joint statements contrary to their perceived interests, or threaten retaliation or hostile amendments to unrelated resolutions led by delegates who defy their will. While often accepted as an inevitable part of the ‘working culture’ of a political body such as the Council, such tactics of intimidation seriously erode the ability of the Council and its members to address human rights situations on their merits. More could be done to bring such tactics into the light when they occur, and the Council presidency and bureau should exercise their institutional responsibility to encourage reporting of such incidents so they can be considered and addressed.

The Human Rights Council is an inherently political body. Its strength and its weakness is that it is a forum where the world’s governments meet to shape responses to the pressing issues of our times. But the Council’s credibility hinges upon the willingness and capacity of its members to address the full range of serious human rights violations falling within its mandate, and this can only be measured through impact on the ground. Its potential could be better fulfilled through political will, more consistent leadership, and a willingness to stand up for what’s right. Perhaps that is idealistic. But if the opportunity for reflection and revision afforded by the tenth anniversary is to mean anything, it is incumbent on the Council, its members and observers, to try.

John Fisher is Geneva Director with Human Rights Watch. He has followed the Human Rights Council from its inception, formerly as Co-Director of Arc International. Follow him on Twitter at @JohnFisher_HRW.

 

[1] Secretary-General's Address to the Commission on Human Rights, Geneva, 7 April 2005, available at http://www.un.org/sg/STATEMENTS/index.asp?nid=1388.

[2] ‘David Cameron challenged over Saudi Arabian teenager’, available at www.channel4.com/news/david-cameron-challenged-over-saudi-arabian-teenager.

[3] ‘Joint civil society paper: Strengthening the Human Rights Council at 10’, available at www.ishr.ch/HRCat10.

Category:

Region
  • Africa
  • Asia
  • Europe
  • Latin America and Caribbean
  • Middle East and North Africa
Topic
  • United Nations
Mechanism
  • Office of the High Commissioner for Human Rights (OHCHR)
  • UN Special Rapporteur on HRDs
Country
  • Iran
  • Israel
  • Netherlands
  • North Korea
  • Russia
  • Saudi Arabia
  • South Sudan
  • Ukraine
  • United Kingdom
  • Venezuela
  • Yemen