Contents:
1. Proceedings
2. Racism and racial discrimination
3. Standard-setting
4. Disadvantaged groups
5. Promotion of human rights
6. Country resolutions
7. Thematic procedures
8. A Chamber of impunity
With 83 resolutions, 18 decisions and 3 Chairperson’s statements, the quantitative outcome of this 59th session is similar to previous years. However, the pressure from hardliner States, which are over-represented in the Commission, increased. This has negative consequences for the special procedures of the Commission.
The mandates of the Special Rapporteurs on Afghanistan, former Yugoslavia and Sudan were terminated. Noteworthy however is the fact that the Commission this year extended many mandates of its special procedures : the Working Groups on Arbitrary Detention; on the Effective Implementation of the Durban Declaration and Programme of Action; on People of African Descent and on the Right to Development. The Special Representative on human rights defenders; the Special Rapporteurs on the right to food, on adequate housing, on independence and impartiality of the judiciary; and on violence against women; the Special Rapporteurs on Burma, on Congo-DRC, on Burundi, on Iraq; the Personal Representative of the High Commissioner on Cuba; and the independent expert on structural adjustment policies. Also extended were the mandates of the Office of the High Commissioner in Colombia and of the experts and Special Representatives on Haiti and Somalia. Under the item concerning technical assistance, the Commission adopted to new mandates of independent experts, respectively on Afghanistan and Liberia.
Since September 2001, the human rights movement has been calling upon the Commission to take action and request States to respect the fundamental human rights standards in the struggle against terrorism. After the failure during the 58th session, the coalition of international NGOs and several governmental delegations led by Mexico led this year to the adoption of a resolution highlighting the need to strictly respect human rights in the fight against terrorism. Yet, the text of this resolution 2003/68 is rather weak and simply resemble the 2002 General Assembly resolution. No human rights mechanism has been established and the mandate of the High Commissioner remains as defined by the General Assembly.
The debates of this 59th session of the Commission were naturally influenced by the diverging positions on the Iraq War and by the ongoing campaign of human rights organisations for the respect of human rights standards in the struggle against terrorism. Strong views were also expressed after the decision of the African Group to nominate the Libyan Ambassador in Geneva to Chair the 2003 session.
Was it really necessary to request a secret ballot to elect the Chairperson, as the US delegation did ? Though it was obvious that the nomination of Libya would not contribute to the credibility of the Commission, observers noted that it was not the first time that a country with bad human rights records would chair the body. Elected by secret ballot (33 votes to 3 with 17 abstentions), Ambassador Najat Al-Hajjaji used her experience to run the session rather smoothly. On several occasions however, she did not resist the temptation to abandon her impartial role to influence the outcome of decisions. This was blatant in the last procedural debate of the Commission on the Brazilian draft resolution on human rights and sexual orientation.
In view of the increasing number of dignitaries coming each year to address the Commission, it was a good innovation to organize a high-level segment. Dozens of Heads of Governments, Ministers and Deputies for foreign Affairs and Ministers for Human Rights took the floor, underlining thus the importance their governments attached to the role of the Commission. It is not sure however that future sessions of the Commission should start again with a first week high-level segment, as it has been the case this year. In practice, the Commission started its real work this year only during its second week. Better might be to plan such a segment during the third week of next year’s session. In view of the time available for the session, one should also ask whether it is necessary to continue welcoming dozens of special guests once the high-level segment has taken place.
Last year, following the reduction of time available for the session of the Commission, the Special Rapporteurs got a few minutes only to introduce their reports, and most of them had refused to take the floor as a protest against this treatment. This experience was not repeated this year. Instead, after their oral presentation, most of the Special Rapporteurs and experts got the opportunity to answer some immediate questions from the floor. This interactive dialogue, though still too brief, is another excellent innovation, which places the reports of the special procedures at the very centre of the deliberations. A next step for future meetings should be undertaken by the delegates, who should read the reports in advance, to better prepare their questions and comments.
Again time has been missing and items of the agenda had to be clustered. This constitutes a significant hindrance for many non-governmental participants, in particular for those coming from the regions to present their specific concerns and needs. Many NGO delegates from the South left Geneva frustrated, without having addressed the Commission. This is a serious issue, and NGOs based in Geneva, or NGOs having the resources to keep a large delegation during the entire session, should address it. They should share the time for NGO oral interventions with those witnesses and victims having authenticity, instead of continuing to try to take the floor under each item of the agenda, often to repeat the same speech.
It is noteworthy that some NGOs could participate in more informal consultations than in the past. This is not due to improved rules, but simply to the expertise of some non-governmental participants and their capacity to make proposals. Some NGO coalitions were particularly effective.
The has been little progress on the negotiations on the follow-up to the Third World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (2001). Gradually some basic conditions are realized for serious discussions on the implementation of the Durban Declaration and Programme of Action. The Special Rapporteur on Racism has shown his independent position on the definition of the peoples of African descent, and this question can no longer be limited to its (main) Trans-Atlantic facet. The Commission has renewed the mandate of the two Working groups (on implementation of Durban and on African Descent) for “an initial period of three years”. It is to be hoped that the group of Western States will now nominate their experts.
Another small innovation is contained in resolution on the elimination of all forms of religious intolerance (2003/54). After a difficult voting process, the U.S. delegation obtained that anti-semitism be included in the special concerns of the Commission mentioned in preambular paragraph No 14 (“recognizing with deep concern that the overall rise in instances of intolerance directed against members of many religious communities in various parts of the world, including cases motivated by Islamophobia and Anti-Semitism”), even though “Semitism” is not a religion.
As in previous years, in its resolution on defamation of religions, the Commission expressed deep concern at the negative stereotyping of religions, but focused on the defamation of Islam, which it found “frequently and wrongly associated with human rights violations and terrorism” (OP 3). This focus on one religion divided again the Commission and this resolution (2003/4) was adopted by a recorded vote of 32 in favour, 14 against and 7 abstentions. It would have been in a separate decision, the Commission would have been almost unanimously welcoming the report of the Special Rapporteur on Racism on the situation of Muslims and Arabs in the aftermath of 11 September 2001. The Rapporteur shall submit a second report on this issue at the 2004 session of the Commission.
One should also note an improvement of resolutions concerning migrants, internally displaced and refugees. Regarding minorities, besides the positive comments of the Commission on the report of the Working group (of the Sub-Commission), it is noteworthy that resolution 2003/50 requested the High Commissioner “to examine existing mechanisms with a view to enhancing their cooperation and effectiveness and to identify possible gaps in the protection of the rights of persons belonging to … minorities” (OP 17).
The Commission renewed the mandates of its Working groups on the draft convention against enforced disappearances, and on the draft declaration on the rights of indigenous peoples. Under the professional chairmanship of the French Ambassador, the negotiations on the draft convention on disappearances made an excellent start. The deliberations should continue focusing on the legal and technical matters and NGOs should strengthen their coalition led by legal experts only. The arduous negotiations on the indigenous peoples’ rights are obviously of a different nature. This working group should first solve the political problems to avoid the confrontation between indigenous and States Representatives to continue for ever.
As decided last year, the Commission also set-up a new Working group to “consider the elaboration” of an optional protocol to the International Covenant on Economic, Social and Cultural Rights. It is a beginning, but many NGOs would have preferred the Commission to have mandated the Group to begin drafting an optional protocol. Much will depend on the future Chairperson of the group.
Progress was also made this year in the field of drafting general principles on combating impunity (the Secretary General is requested to commission an independent study on best practices) and on the right to restitution, compensation and rehabilitation for victims of grave violations (there will be a second consultative meeting on revised guiding principles to be prepared in consultation with Mr. Van Boven and Mr. Bassiouni).
Traditionally in its deliberations the members of the Commission also try to precise some basic elements of human rights law. The debate on democracy continued, with several resolutions adopted, which confirmed the existing, almost ideological, gaps. On the issues of death penalty and of human rights and duties, two steps should be recorded from this 59th session.
In comparison with last year, the resolution on death penalty slightly improved. This year’s resolution condemns cases of women subjected to capital punishment on the basis of gender-discriminatory legislation. It calls on States that maintain the death penalty to inflict the minimum possible suffering, and to ensure that cruel or inhuman means of executions, such as stoning, be stopped immediately.
The Cuban delegation had proposed to authorize the Rapporteur on human rights and responsibilities to send again his questionnaire to member States, thus extending his study by a further year. In a tight vote (25 in favour, 25 against and 3 abstentions), this draft decision was rejected. The study of Mr. Miguel Alfonso Martinez therefore came to an end.
The Commission adopted its two annual resolutions on the integration of women’s rights in the UN system and on violence against women. Many reference were made on women and girls’ trafficking. The Philippines delegation decided to make this issue biannual. No resolution was therefore adopted this year. But there are improved paragraphs in some resolutions : rights of the child and migrants.
The Special Rapporteur on adequate housing was requested to submit a report women and adequate housing.
The Commission adopted its omnibus resolution on the rights of the child and a resolution on the abduction of children in Africa (in previous years in Northern Uganda only).
Little progress was made during in the field of indigenous peoples’ rights. The mandates of the two Working groups on the draft declaration and of the Sub-Commission) were renewed, but the strong divergences remain unchanged on two basic issues : the definition and basic rights of indigenous peoples (definition, self-determination, cultural rights, land’s rights, e.g.) and the future of the Working group of the Sub-Commission. Several Western countries apparently would prefer the Working group to be abolished; other States rightfully argue that the Permanent Forum does not constitute duplication of work, since it includes development, environment, health and education. The best advocacy for keeping the Working group will be to develop new innovative standard-setting and studies on key problems indigenous peoples are facing in all parts of the world.
In the Commission mechanisms there is still no comprehensive procedure covering the rights of refugees. The resolution on human rights and mass exodus (2003/52) constitutes a step in the right direction. It urged States to uphold the civilian and humanitarian nature of asylum; and expressed grave concerns on the sexual exploitation of refugees and internally displaced persons. The Commission requested the Office of the High Commissioner to prepare for its 2005 session an analytical report on the protection of refugees and asylum-seekers.
With the resolution on the human rights of persons with disabilities (2003/49), the Commission has initiated a process of integrating the rights of these persons into the mainstream activities of the U.N. The Office of the high Commissioner will have to report next year on the implementation of the recommendations of the Special Rapporteur of the Commission for Social Development, and the Special Rapporteur was invited to address the Commission next year on the experience gained by him and by the panel of experts in the monitoring of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities.
Sexual orientation has been a burning issue during this 2003 session. In a lengthy debate on the voting of the resolution on summary executions (2003/53), the Swedish delegation, author of the draft, remained firm on the operative paragraph mentioning the discrimination against persons with different sexual orientation and obtained that the Commission keep it despite strong opposition from States members of the Organisation of the Islamic Conference (OIC).
The Brazilian delegation proposed a draft resolution on “Human rights and sexual orientation” to formally condemn any form of discrimination persons with different orientation are subjected to (draft L.92). The Muslim States (supported behind the scene by the Vatican and some Catholic States) submitted many amendments to hinder the adoption of the resolution. They used many artifices to win time, including a debate on the question whether the Commission should meet one hour longer on its final day. With the complacency of the chair they obtained that the consideration of this draft resolution (and its amendments) be postponed until next year (decision 2003/118).
The Commission will have to take up this issue seriously. Homosexuals are also human beings and a human rights body will have to formally declare that these people also enjoy the protection of all human rights. As exemplified again this year in the debate on summary executions, the opponents to the Brazilian draft know quite well that there is a potential majority in the room to do so. They just won one year at the costs of the victims. It would also be useful that next year the Brazilian delegation takes the initiative in concertation with others.
Many resolutions adopted during the 2003 session confirm the policy line to prioritise the effective implementation of human rights standards at domestic level. Member States should work more at the reinforcement (or sometimes at the establishment) of a national protection system.
The role of the national commissions and the regional arrangements was further stressed by the Commission. But the mere existence of national institutions does not mean automatically that the human rights situation has advanced. National institutions are a tool to promote the respect of human rights, and not an aim in itself. They sometimes constitute a buffer for the governments. Hence the need to constant scrutiny, accountability and dialogue between them and the NGO community. The monitoring of national institutions should be strengthened, in particular on the basis of the Paris Principles, which should be better respected. The mandates of many national institutions do not fulfil these principles, which establish that the tasks of these institutions should include the promotion and protection of human rights, the harmonisation of national law with the international obligations of the State, teaching and research, and the possibility of receiving and considering complaints.
Regional cooperation and arrangements are also essential, but should not be used by governments as another diversion to dilute universal standards.
The Commission reiterated the importance of the programme of advisory services and technical assistance in the field of human rights. No doubt the activities of the UN in this sector are better organized than in the past. However a majority of States still consider this question as a good opportunity to escape human rights scrutiny under a more appropriate item of the agenda, that of human rights violations (item 9). More and more country resolutions are being adopted under item 19 (“advisory services”). Politically speaking, such a this transfer to item 19 is considered as a “graduation” and this should be welcomed when applied to countries showing real progress in their domestic human rights situation. One may doubt this is the case of Afghanistan. This transfer also constitutes a real set-back when the mandates outlined in those resolutions do not contain provision for human rights monitoring. During this 59th session, the resolution on Chad illustrated this risk of diversion of the programme. During the debate, several African and Asian delegations even indicated they prefer to receive funds for their governmental projects without any resolution.
This 59th session confirmed that, facing numerous cases of massive and systematic human rights violations around the world, the Commission unfortunately becomes more and more silent.
Last year, the Commission abruptly terminated the mandates of its Representatives on Iran and Equatorial Guinea, and refused to adopt drafts on Zimbabwe and Chechnya. This year, it ended the mandates of the Special Rapporteurs on Afghanistan, Sudan and former Yugoslavia, and it rejected again the initiatives on Zimbabwe and Chechnya.
On the positive side, one should note that during this 2003 session the Commission adopted for the first time resolutions on three countries, Turkmenistan, Belarus and North Korea, and that it created two mandates of independent experts, for Afghanistan and Liberia respectively.
Under different items of its agenda, the Commission also adopted its traditional country resolutions : under item 5 (“self-determination”) on Western Sahara and the situation in occupied Palestine; under item 8 (“Arab Occupied Territories”) on the occupied Syrian Golan, the Arab occupied territories, and Israeli settlements; under item 9 (“human rights violations”) on Burma (Myanmar), Burundi, Congo-DRC, Cuba, Cyprus, Iraq, and the Lebanese detainees in Israel. Three Chairperson’s Statements were adopted by consensus on Haiti, Timor Leste and Colombia. And under item 19 (“Advisory Services and Technical Cooperation”) resolutions were passed on Afghanistan, Cambodia, Chad, Liberia, Sierra Leone and Somalia.
At the end of the 59th session, many NGOs expressed their disappointment that no action had been taken by the Commission on Chechnya, China, Iran, Nepal and Zimbabwe.
It is a long time ago that the U.N. General Assembly called the appropriate United Nations bodies, “particularly the Commission, to take timely and effective action in existing and future cases of mass and flagrant violations of human rights” (resolution 34/175). Since then (1979), the Commission adopted resolutions and appointed Special Rapporteurs on dozens of countries from all regions. Over the last five years however, the number of countries resolutions and of country Rapporteurs has crumbled into dust. The last time a Special Rapporteur was appointed on a new situation was in 1998 with the resolution on Nigeria. At the end of the 59th session, the remaining mandates of the Commission had been reduced to five Special Rapporteurs and Representatives only, respectively on Congo-DRC, Burundi, Palestine, Iraq, Burma (to eight last year), five experts under advisory services, on Afghanistan, Cambodia, Haïti, Liberia and Somalia (three in 2002), one Office of the High Commissioner in Colombia, and one Representative of the High Commissioner (for Cuba).
Moreover, the texts of most of the resolutions are weaker than in previous years. Rightly, Amnesty International stated in its press release of 25 April 2003 that “the Commission again failed to protect victims of human rights violations”.
What is lacking is not information, but political will. In the Commission, Member States decide and the best way to avoid condemnation is apparently to be elected in this body, which is losing dignity, credibility and responsibility.
Obviously, States don’t like scrutiny and where patterns of systematic human rights abuses exist, the governments try to avoid condemnations. Having learned the rules of the game, these regimes have multiplied diplomatic initiatives in order to be elected in the Commission, to better protect themselves. A member of the Commission votes; it can bargain its position on many resolutions by espousing the hardliners’ approach. The alliances, the regional solidarities and trade-offs may lead to the failure of draft resolutions on situations of massive human rights violations, as it has been the case again this year with the drafts on Chechnya, Sudan and Zimbabwe. During the entire session the votes of the delegations of the Russian Federation, Sudan and Zimbabwe illustrated this game.
During the whole 2003 session, strong criticism was voiced against item 9. African and Asian States, together with Cuba, repeatedly accused the Western democracies to “politicise” the work of the Commission with their criticism of other countries human rights performance. This argument is not solid, since the Commission is anyhow a political body, as the High Commissioner remarked in his closing speech.
The same States argued that the Commission used double standards. Their recourse to no-action motions (they did it successfully this year on the draft concerning Zimbabwe) and the public warning of the African group that, henceforth, the African countries would no longer tolerate being called into question for human rights violations, are the best illustrations of these double standards.
After a long debate, the Commission rejected a proposal to hold a Special sitting on Human Rights and the Humanitarian Situation as Consequences of the War” (18 in favour, 25 against, 7 abstentions). The revised proposal had been put forth by Syria with the following co-sponsors : Algeria, Burkina Faso, Libya, Malaysia, Russia, Sudan and Zimbabwe.
The High Commissioner stated that the human rights of the Iraqi people had been violated for many years, and that in the current crisis humanitarian law and fundamental rights should be protected by all the parties to the conflict. Secretary-General Kofi Annan, on the one side acknowledged that “we have also witnessed scenes of jubilation at the fall of an oppressive regime”, and on the other side called the coalition to “set an example by making clear that they intend to act strictly within the rules set down by the Geneva Conventions and The Hague Regulations regarding the treatment of prisoners of war” and to demonstrate “that they accept the responsibilities of the Occupying Power for public order and safety, and the well-being of the civilian population”.
At the end of the session, the Commission finally adopted a weakly worded resolution calling on the Parties to respect the humanitarian law and renewing the mandate of the Special Rapporteur. The text condemns the past abuses but fails to address the current situation and to deploy human rights monitors, as requested by several NGOs. Even more, it requests the Special Rapporteur to focus on past human rights abuses. It is a worrying trend that the Rapporteur’s mandate be so limited.
Following a Statement of the Chairman of the Commission, the Office of the High Commissioner for Human Rights in Colombia was opened in November 1996 under an agreement between the Colombian Government and the High Commissioner for Human Rights, Mr. José Ayala Lasso. The Office’s mandate includes observing and monitoring the human rights and humanitarian law situation, and to advise the authorities on policies, programmes and measures for the promotion and protection of humans rights in the context of the internal armed conflict. The High Commissioner submitted again the report of the Office to the Commission.
As in previous years, Colombia was one of the worst cases mentioned in the thematic reports on disappearances, extrajudicial killings, torture, independence of the judiciary, human rights defenders, internally displaced. Besides the crimes committed by the army and the guerillas, the operations of the para-military groups constitute again the main source of human rights violations. During the special debate on Colombia under item 3 of the agenda, many human rights organisations and States delegations expressed again concerns and disappointments. Despite the excellent work realized by the Office in Colombia, they all stressed the further deterioration of the situation since last year’s Commission. There had been no follow-up to the numerous recommendations made by the Commission, the Office, the thematic mechanisms, the Inter-American system. Obviously, political will on the side of the Government is still lacking.
A clear illustration denounced by many speaker is the recent adoption of a decree for amnesty and legalisation of the paramilitaries. The Colombian Government has taken steps for a possible peace process with the paramilitary groups, which shall be based on impunity for war crimes and crimes against humanity. On 22 January it issued Decree 128 (2003), which provides that demobilised members of armed groups “will be entitled to an amnesty” as long as a governmental body called the Operating Committee for Giving Up Arms (CODA) certifies that the person concerned belonged to an illegal organisation and willingly deserted. Composed of six States officials, CODA is chaired by a representative from the Minister of Interior and Justice. Many Colombian and international NGOs demanded stronger measures by the Commission, including a clear condemnation of Decree 128 and a decision that the reports prepared by the Office should be made available also to the U.N. General Assembly. The poorly worded Chairperson’s Statement does not contain these two crucial proposals.
Another disappointing Chairperson’s Statement concerns Timor Leste. The weakly worded text may hail the end of the Commission’s consideration of Indonesia’s legacy in this new country. From the very beginning of its brutal occupation of East Timor in 1975, Indonesia benefited a complaisant attitude from the international community. Soft resolutions, lack of reaction to so many unfulfilled commitments, too late intervention to avoid massacres, Indonesia, who has been also permanently a member of the Commission, enjoyed impunity in the Commission. This year, as the flawed trials in Jakarta near an end, this was the key moment for the Commission to condemn Indonesia for its failure to respect the commitments it agreed to in the previous Commission’s decisions, to bring perpetrators of international crimes to justice. The Commission should have demanded alternative measures, including the setting-up of an international tribunal. Instead, the Chair simply expressed disappointment.
In his report to the Commission, Special Rapporteur Gerard Baum stated that "in spite of the commitments made, the overall human rights situation has not improved". He described how in the area under the control of the Government of Sudan "the role of the security apparatus as the main entity responsible for the human rights abuses as well as the impunity enjoyed by security remains an issue of serious concern". At the beginning of item 9 of the agenda, Amnesty International and Human Rights Watch called on the UN Commission on Human Rights to continue to strengthen its human rights monitoring presence in Sudan. They stressed that : "Over the past 10 years the Special Rapporteur has been an important agent for change; his regular monitoring visits and public reporting have been a lifeline for Sudanese human rights activists and victims”. They further stated : “We are calling for his mandate to be renewed. Monitoring and public reporting is the one way to end abuses and impunity. Now is the time to increase UN human rights monitoring, not to end it".
Despite this, the African Group of States succeeded in its enterprise to get rid of the country Rapporteur. The draft resolution to renew the mandate of the Special Rapporteur was rejected by 24 votes in favour, 26 against and 3 abstentions. Those in favour were most of the Western, Eastern European and Latin American countries. Cuba, Russia, Ukraine and almost all the African and Asian members States (including South Africa) voted against, with the exception of Japan, South Korea, Thailand, Togo and Uganda.
Some observers felt that it could have been possible to avoid closing the Sudan file by accepting transferring this resolution under the item 19 (“advisory services”). A more flexible attitude would have been useful, they claimed, the more so since several member delegations were reluctant to give the same treatment to Sudan and Zimbabwe. Anyhow, a draft resolution on Zimbabwe was rejected as well, a motion of no action being accepted by 28 votes against 24 and one abstention.
The draft resolution tabled by Italy deals almost solely with technical assistance. The mandate of the Special is terminated, whilst human rights abuses continue to be committed with impunity throughout the country. The text does not address past human rights abuses. An independent expert shall be appointed under item 19 with a restricted mandate, since (s)he’ll have to of develop a programme of advisory services “in strict collaboration with the Transitional Authority”. The only positive side of this resolution 2003/77 is that the expert is also mandated to “seek and receive information about and report on the human rights situation”.
As in previous years the resolution fails to ensure that serious investigations be made into several reports of grave human rights violations. Resolution 2003/15 does not follow the recommendation of the High Commissioner to establish a comprehensive commission of inquiry.
As lat year, the members States, that denounced finger-pointing as counterproductive politicisation, claimed that the Commission instead should focus on prevention and promotion. If their concern would be genuine, they would welcome the thematic mandates.
On 24-25 May 1994, the Commission on Human Rights met in an emergency session to discuss the ongoing genocide and massacres in Rwanda. This special session was convened 500’000 deaths too late. The scandal is that the Commission had failed to seriously examine the report of one of its thematic Rapporteur. Both the Commission’s members States and the U.N. Center for Human Rights had known what was hatching in Rwanda one year in advance, when Mr. Bacre Waly Ndiaye, the Special Rapporteur of the Commission on summary executions, transmitted his report on his country visit of April 1993. During the 49th session (1 February – 12 March 1993), the Commission (with Rwanda as a member !) had decided to keep Rwanda under its confidential procedure. Available since June 1993, Mr. Waly Ndiaye’s report was describing in details the genocide in preparation… Notwithstanding this reliable and distressful information, the members States of the Commission, had again decided in March 1994 to continue discussing the Rwandan situation under the confidential procedure…..
This year, the Commission renewed several mandates of its thematic procedures : the Working Groups on Arbitrary Detention; on the Effective Implementation of the Durban Declaration and Programme of Action; on People of African Descent and on the Right to Development; the Special Representative on human rights defenders; the Special Rapporteurs on the right to food, on adequate housing, on independence and impartiality of the judiciary, on violence against women; and the independent expert on structural adjustment policies.
Undoubtedly, over the years the special procedures gradually improved. However they are facing serious difficulties. There is a lack of financial resources and the Rapporteurs (who are not paid and don’t live in Geneva) do not always have a full-time assistant; there is sometimes a huge backlog in the examination of cases submitted, in particular in the case of the Working group on enforced disappearances; reports of the Special Rapporteurs are not always adequately disseminated. The constant creation of new mechanisms also led to a decreasing support for existing mandates. Many Rapporteurs have been vocal on these problems. Their annual meeting offer them a good opportunity to exchange experiences and better coordinate their work (joint initiatives for the sending of urgent appeals and communications and for field visits, e.g.).
But the main problems are of a political nature. Many States keep a critical eye on the enhancement of the system. They target more and more the experts. During this 59th. session brutal comments were made against to of them. The US delegation strongly attacked Mr. Jean Ziegler, Rapporteur on the right to food; the Algerian Ambassador waited that Prof. Theo Van Boven, Rapporteur on torture, had left Geneva to publicly question his integrity and impartiality. Such behaviours should not be tolerated in the UN Commission on Human Rights. In an unprecedented move, Deputy High Commissioner Bertie Ramcharan had to take the floor to defend the Rapporteur on torture.
A serious set-back was the 2000 decision of the Commission, which decided in its last review of the mechanisms to limit to two terms the mandates of each expert. Last year, a group of States even imposed the change of an expert in the resolution itself (on racism).
Sergio Vieira de Mello clearly took side, when he declared in his closing address : “As High Commissioner, I place great value on the work of our independent Special Rapporteurs and other special procedures. Their efforts are vital and often courageous. To help them carry out the mandates you give them, and in line with the emphasis placed by the Secretary-General on special procedures in his second report on reform of the Secretariat, I have created – using existing resources – a dedicated Special Procedures Branch to provide them with better support in the pursuit of their mandates”.
As the reader could establish in looking at this year’s thematic reports, many Rapporteurs were denied access to countries that they intend to visit, even when the visit has been called upon by a resolution of the U.N. Commission. The campaign initiated by the ‘Quakers’ to obtain from the U.N. member States that they extend an open invitation to all the mechanisms of the U.N. Commission should receive more support.
As of 8 April 2003, the following 47 countries have extended a standing invitation to the thematic Special Procedures of the U.N. Commission : Argentina, Austria, Belgium, Brazil, Bulgaria, Canada, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Germany, Georgia, Greece, Guatemala, Hungary, Iceland, Ireland, Iran, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Netherlands, Norway, Paraguay, Peru, Poland, Portugal, Romania, San Marino, Sierra Leone, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and United Kingdom.
This list illustrates the political problem in the Commission : one African country only (Sierra Leone) and no Asian country extended such an invitation. The same African and Asian governments, who have the majority of votes in the Commission (27 out of 53 members) oppose country debates, denounce partiality and double standards and call for priority to promotion and prevention. At his stage they are not supporting either the strengthening of the thematic procedures.
In fact, the current offensive against country resolutions and mandates only constitutes the first stage of another major offensive, which shall affect soon the thematic procedures. During this 59th session, a negative decision proposed by Pakistan and Saudi Arabia was adopted by 28 votes to 24 (with one abstention), which targets a fundamental part of the thematic procedures, that of the transmission of communications and urgent appeals to governments. In this decision 2003/113, the Commission requests effective coordination in the Office of the High Commissioner to “preclude any overlapping and/or duplication”, and to ensure that communications and urgent appeals be forwarded to the government concerned “with written authorization from the Special Rapporteur”. Procedural solutions will have to be found soon to avoid that the appeals of Special Rapporteurs living far from Geneva lose their urgent character.
It is not the first time we state it : the U.N. Commission on Human Rights is becoming a Chamber of Impunity. In the U.N., members are States. In the Commission, membership protect. Instead it should entail clear commitments to respect human rights.
At the end of the 58th session, Ms. Mary Robinson had stated that “if the Commission is not able to act for the protection of those whose rights are being violated on a massive scale, it would lose its essence (…)I feel it my duty as High Commissioner to pose this question : is it not right that when there are situations of gross violations of human rights, this Commission seeks to protect the victims?”. Secretary-General Kofi Annan said basically the same this year, in his 24 April speech : “This is a time when your mission to promote and protect human rights in the widest sense is more important than ever, your responsibility to act more urgent … if you are to play the role intended for this Commission, and if the cause of human rights is to be advanced in the broad and universal manner that we all desire. Inaction in not an option”.
In his closing statement to the Commission, High Commissioner Sergio Vieira De Mello also raised his concern, requesting that “the word politicisation and all its variants be retired from active service”, and stating : “Yet at times I have felt that, in the course of competitive debate, delegates were losing sight of the noble goal of protecting human rights, in the very body whose duty is to promote them ... When a charge of partiality – of failure to recognize the indivisibility of human rights – destroys a resolution on an important question, this is not to be celebrated. It is a disaster. It is a failure to take up the burden. At worst, it may even be a betrayal of the hopes of people who desperately need you”.
It is a matter of credibility. The Commission has silenced its Sub-Commission, which no longer has the right to adopt resolutions on cases of severe human rights violations. This has been done without any complementary mechanism being set up to seriously consider the cases of grave violations submitted to it through its different procedures, in particular the reports of the thematic mandates. If the Commission itself, as main U.N. body for human rights, no longer tackles these situations, then who can ? Would member States prefer that NGOs increase their lobby efforts at the level of the U.N. General Assembly and Security Council?
A (peaceful !) “cultural revolution” is required. International human rights law and humanitarian law apply to all, without distinction. There should be no exception for the members of the Commission, nor for the United States, who considers itself as an irreproachable global democracy promoter; nor for Israel who refuses to acknowledge the illegal nature of their occupation of Arab territories; nor for Pakistan, who protects itself from condemnation by taking the lead against “islamophobia”, whilst Christian minorities in the country continue to be massacred. Nor should there be exception for poor countries, who tend to use their legitimate appeal for a fairer economic order to stifle any inquiry into the human rights violations they commit. There should be no exception for industrialized countries either, whose policies on migrants and refugees violate fundamental principles. And, above all, no exception should be made in the war against terrorism, as a successful outcome can only be achieved if human rights remain fully respected.
The shortcomings of the Commission also need to be analysed in the light of the developing multilateral system. At the beginning of its history, almost sixty years ago, the UN Commission was basically dominated by strong individuals, personalities having clear commitments in human rights. Gradually, governmental delegations took over the leadership. Currently, we monitor groups of States dominating almost every single negotiation. From individuals to States, and now from States to regional groups, the decision making process has changed, and NGOs proposals and strategies should take this into account.
Adrien-Claude Zoller
June 2003