Combined report on the UN Human Rights Council Session 29 (15 June 03 July 2015) and Session 30 (14 September 02 October 2015)

Transcription

1 Report Combined report on the UN Human Rights Council Session 29 (15 June 03 July 2015) and Session 30 (14 September 02 October 2015) Geneva, Switzerland THEODOR RATHGEBER The UN Human Rights Council (HRC) adopted during its 29 th session 25 resolutions, 15 decisions and a President s Statement. The President s Statement (PRST 29/1) stressed to improve the HRC s efficiency. Among other suggestions the statement recommends to encourage sponsors presenting their resolutions only every two or three years, and to entitle the President s Bureau to occasionally extend the mandate of a Special Procedure after its expiration for one or two additional regular sessions. The text also outlines that the Bureau will in the future adhere to the deadline for presenting the drafts of resolutions more strictly. The HRC 30 session adopted 30 resolutions, 15 decisions and two President s Statements. By decision A/HRC/DEC/30/115, and in reference to PRST 29/1, the Bureau extended all mandates of all Working Groups for the timeframe of the next two regular sessions. The HRC also made the recommendation to the UN Secretary-General via the UN General Assembly to establish a Forum on Peoples with African Decent in the Diaspora (resolution [A/HRC/RES/] 30/17) in order to serve as a consultative mechanism for people of African descent in the diaspora as well as an advisory body to the Human Rights Council on the plight and needs of the people of African descent. Unfortunately, Western States did not accept the need for such body and voted against. 29 th Session of the Human Rights Council 1 In his address to the HRC the UN High Commissioner for Human Rights (HCHR), Zeid Ra'ad Al Hussein, updated the Council on the findings of the Office of the High Commissioner for Human Rights (OHCHR) on human rights abuses and vicious atrocities committed by the terrorist group Boko Haram in Cameroon, Chad and Niger over the past year. The HCHR further stressed among others the lack of funding and humanitarian aid for about 8 million Iraqis because the funds have been exhausted as well as the plan of the UK 1 Details of all resolutions and documents are accessible via and consecutive links. 1 P a g e

2 government to suspend the Human Rights Act of Based on this Act, the European Court on Human Rights had issued a number of sentences which were not met with approval by the UK government. Instead, the UK government now plans to establish a British Bill of Rights in order to regain the sovereignty of British courts. Amongst the main issues handled by HRC 29 were reprisals against human rights defenders (HRDs), migration, violence against women and protection of the family. With regard to reprisals, it is worth noting that the Special Rapporteur on Eritrea, Sheila Keetharuth, was physically attacked by Eritreans supporting the government and protesting outside the UN building in Geneva. Some members of the Commission of Inquiry on Eritrea also had to be protected by the police when entering the premises in order to present their reports (A/HRC/29/41, A/HRC/29/42). Regarding the situations of HRDs, while a resolution on corruption was adopted (29/11) it did not consider the risks faced by HRDs fighting corruption and promoting transparency and access to information. A letter from the Permanent Representative of Latvia on behalf of the European Union (EU) had requested the HRC at the end of May to dedicate a segment of the session on the situation of migrants including an update by the HCHR and an interactive dialogue with the Special Rapporteur on migrants as well as on minority issues. While opening the debate the HCHR highlighted that migrants (and refugees) predominantly need protection, support and respect for their dignity; not push-backs. He stressed that people escaping oppression, violence and economic despair will always find irregular migration channels in the absence of regular ones. This does not make them criminals. Thus, the issue of migration needs a global response as opposed to knee-jerk political reactions and reactionary policies. The HCHR mentioned a number of countries in particular where he saw critical situations: Myanmar, Bangladesh, Thailand, Malaysia, Australia, South Africa, the states of the Gulf- Cooperation Council, the US, El Salvador, Honduras, Haiti, the Dominican Republic as well as the Mediterranean region. He welcomed the decision of the EU to increase its funds for humanitarian aid and suggested the HRC to deal with the subject in the near future within a HRC Special Session. The HCHR was supported by statements of representatives of the High Commissioner on Refugees, the International Organisation for Migration, the International Labour Organisation and the Special Rapporteur on Migration, François Crépeau. The Special Rapporteur of Migration presented his report (A/HRC/29/36) stating that sealing borders does not work, is not sustainable and simply empowers smugglers. Mobility is an inescapable consequence of globalisation. Despite a huge investment in securing international borders, the will and ability of migrants to reach Europe will always be stronger. Restrictive policies would therefore only serve the lucrative markets for smuggling rings. Therefore, in particular the EU should rather develop systems to regulate mobility that would include opening channels for the entry of migrant workers at all skills levels and sanctioning employers who exploit migrants. He recommended that the EU establish a human rights-based, harmreduction, coherent and comprehensive migration policy which makes mobility its central asset. The details of this call spread over six pages of his report (A/HRC/29/36, paras ). The issue of migration was further dealt with in a resolution on migration 2 P a g e

3 (29/2) introduced by Mexico which partly reflects the HCHR s concerns over a security based migration policy. Violence against women constituted another issue dominating the 29 th session. Resolution 29/14 condemns violence against women in domestic milieus while using newsworthy strong wording. A group of states composed of Saudi Arabia, Egypt, Bahrain, Iran, Kuwait, Oman, Qatar, Russia and United Arabic Emirates intended to water down the wording by evading references to intimate partner violence and marital rape as well as comprehensive sexuality education. The corresponding amendments to the draft resolution were, however, voted down, and proposals to omit these references were also rejected. Another attempt to demote women s rights was the report of the Working Group on the issue of discrimination against women in law and in practice (report A/HRC/29/40). A number of states, led by Russia, criticised the report as well as the text of the resolution on Elimination of discrimination against women (29/4) for allegedly representing tradition, culture and religion as problematic, while the sponsors of the resolution underlined that both the report and the resolution highlighted rather the problems emanating from distortions in interpretation of such values. The issue of protection of the family is based on a long-standing controversy on traditions and values related to the understanding of the scope of family. A coalition led by Bangladesh, Belarus, China, Cote d Ivoire, Egypt, El Salvador, Mauritania, Morocco, Qatar, Russian Federation, Saudi Arabia and Tunisia insisted on a traditional understanding of man, women and child, and elevate the family as an institution in need of protection, while human rights abuses may frequently occur within the family itself. Russia, on behalf of the sponsors, even blocked the consideration of an amendment to resolution 29/22 using a procedural no-action motion. Brazil, South Africa and Uruguay had presented an optional text addressing the variety of family models that in different societies exist. There is a certain hope with the OHCHR who is requested (Operative Paragraph 32) to prepare and present a report to the HRC 31 session (March 2016) on the matter. In the past, such reports adjusted such debates to a strict human rights based terminology. Further resolutions passed during the 29 th session included the resolution on dispatching a fact finding mission of the OHCHR to South Sudan which was widely welcome (29/13). However, the late action as well as the lack of a standing monitoring mechanism were criticised. The resolution calls on OHCHR to make a comprehensive assessment of the human rights situations and to assess the effectiveness of steps taken by the Government of South Sudan to ensure accountability for human rights violations and abuses, which could include work to establish appropriate criminal justice mechanisms. It further calls for OHCHR to work with the African Union and its Commission of Inquiry. No action was taken on the project A/HRC/29/L.20 dealing with the right to freedom of expression, including in the form of art, to be presented by Benin, Latvia, US and Uruguay. Pakistan on behalf of the Organisation of Islamic Cooperation hat announced its resolute resistance. While the resolution to the right of education (29/7) was finally adopted without a vote, the amendments of China and Pakistan were rejected. This is noteworthy as the amendment A/HRC/29/L.31 sought to introduce to the preambular paragraphs a 3 P a g e

4 reference on the so called Lucen Guidelines, i.e. the special protection for schools and universities in armed conflict. The large majority of Western states voted against while the US delegation agreed. Bangladesh and the Philippines introduced resolution 29/15 on climate change and requested a panel during the HRC 31 session (March 2016) on the impacts of climate change on health. Somewhat controversial was resolution 29/23 which strengthens the capacity building and technical assistance with the Ukraine presented by the country itself. The resolutions invites the OHCHR to periodically report on the situation in the Ukraine while Russia voiced their suspicion that the government of the Ukraine simply sought access to UN funding for its governance. 30 th Session of the Human Rights Council During the 30 th session of the HRC in September, the HCHR reminded the Council on the ongoing deplorable situation of the refugees and migrants. Despite many expressions of concern and promises, nothing changed substantially. Neither did the funds of the UN for humanitarian aid increase nor was comprehensive action taken to respond to the continuous migrant movements. The political gestures in offering some support to refugees and migrants by the governments of Jordan, Lebanon, Turkey, Germany and Sweden were however welcome. The HCHR further drew attention to the reprisals suffered by HRDs in particular in China, Russia and Central Asia. The September session regularly focuses on indigenous peoples rights. This year, the Special Rapporteur, Victoria Tauli Corpuz, reported about the gap between a progressing legal and institutional framework on the one hand, and a significant lack of implementation; explained with the example of Paraguay (A/HRC/30/41/Add.1). The second organ of the HRC dealing with indigenous issues, the Expert Mechanism on the Rights of Indigenous Peoples, reported on cultural heritage (A/HRC/30/53) and the implementation of the UN Declaration on the Rights of Indigenous Peoples (A/HRC/30/54). With the help of the Board of Trustees of the United Nations Voluntary Fund for Indigenous Peoples it was possible to enable 105 indigenous representatives attending the UN World Summit on Indigenous Peoples in September 2014 in New York. Another important element of the 30 th session constituted the supplement report A/HRC/30/37 by, the Working Group on Arbitrary Detention which addressed the issue of Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of their Liberty by Arrest or Detention to Bring Proceedings before Court. The Working Group had already wrapped up part of its debates on definition, best practice, and legal grounds in the reports in March 2013 (A/HRC/22/44) and September 2014 (A/HRC/27/47). The final report condensed also the outcome of a global consultation into 21 principles and 22 guidelines; see annex to A/HRC/30/37. Among others, the guidelines define a particular diligence of the state towards vulnerable groups, such as children, women and girls, people with disabilities, or stateless people. A first step of implementation is now to disseminate these guidelines. The same Working Group also presented its follow-up to the mission to Germany (in 2011; see A/HRC/19/57/Add.3). The report (A/HRC/30/36/Add.1) noted some positive changes in policy and law making as well as a general decrease in the number of inmates. The standard examination of pre-trial 4 P a g e

5 detention was identified as best practice compared to international levels. In addition, the Working Groupexpressed their concern over the ongoing detention of migrants due to their irregular status of residence and further recommended to extend the mandate of the German Institute for Human Rights into a monitoring mechanism. A second follow-up report referred to Italy (A/HRC/30/36/Add.3; Addendum Follow-up mission to Italy). Throughout the Council session, restrictions and shrinking space for civil society actors was yet again the subject of criticism, particularly when the Council was addressing situations in China, Russia, Saudi Arabia, or Cambodia. Regretfully even members of the Council showed their continued unwillingness to fully cooperate with the HRC and to adhere to basic membership standards. It should be noted, however, that 53 states issued a joint statement on Item 5 (main sponsors were Ghana, Hungary, Ireland, and Uruguay) defending the engagement of HRDs as being a constitutional part of the rule of law in any given country and stressing the HRC s duty to address intimidation and reprisals, and to protect those cooperating with the Council. Also acknowledged was the active and positive role played by the HRC current President, German Ambassador Joachim Rücker, who indiscriminately addressed reprisals and promoted the cooperation with the Council. Despite such positive elements, the HRC still fails to transfer such acknowledgement into a genuine policy. The country resolutions on Sudan 30/22), Yemen (30/18), or Cambodia (30/23) did not explicitly refer to the need of free articulation by civil society actors nor establish corresponding monitoring mechanisms. Only thematic resolutions seem to consider the genuine role of civil society actors in political participation such as resolution 30/9 on equal participation in political and public affairs. Controversies marked the discussions and voting processes on the resolutions preventing and combating extremism (30/15), unilateral coercive measures (30/2), death penalty (30/5; plus three amendments L.34-36), mercenaries (30/6), right to peace (30/12), right of peasants and others working in rural areas (30/13), activities against racism (30/16), right to development (30/28), and new international equitable order (30/29). Resolution 30/15 (extremism) was confronted with four amendments, presented by Russia (A/HRC/30/L.37 L.40). The wording of some of the amendments was reasonable to be introduced in such resolution; such as referring to racism (L.37) or armed conflicts (L.38) as push factors for extremism. Unfortunately, due to like-minded bloc orientation, it was not possible to strengthen the wording of the resolution. The text requests a panel discussion at the HRC 31 session in order to detail e.g. the meaning of the term international cooperation. Mostly welcomed was the resolution in relation to accountability and reconciliation in Sri Lanka (30/1). The OHCHR presented its report (A/HRC/30/61 plus A/HRC/30/CRP.4) with the comment of the concerned government A/HRC/30/G/4). There is now more than enough evidence to reasonably take action on investigating war crimes, crimes against humanity and gross human rights violations. The OHCHR report therefore recommends to establish a hybrid tribunal to use the presence of independent international experts to guarantee a fair and comprehensive trial. Though the term hybrid did not find its way into the text of the resolution, should the wording of the resolution be truly translated 5 P a g e

6 into action, this would fulfil most of the relevant OHCHR recommendations on transitional justice mechanism including independent, impartial, and international expertise. During the Council debate it was nevertheless pointed out that the active participation by HRDs and other civil society actors in Sri Lanka will be indispensable. If effectively implemented, the resolution might establish a good practice of what the HRC can achieve. The resolution signifies noteworthy progress towards creating an environment conducive to justice and reconciliation. Some crucial questions, however, remain, such as the ongoing militarisation in the North and East, and the gaps in the Victim and Witness Protection Act. The victim-oriented panel discussion on North Korea (Democratic People s Republic of Korea; DPRK) was the first of its kind at the Council on a country situation under Item 4. The HCHR mentioned the opening of an OHCHR office in Seoul in order to systematically collect data on human rights violations and crimes against humanity, which will serve to hold the leadership of North Korea accountable in the future, on occasion even at the International Criminal Court. The focus of the offices work will be on kidnapping and enforced disappearance. The panel addressed additional crimes such as extra-legal execution, slavery, deportation, enforced abortion, politically motivated murder, and detention for political reasons. Though no striking proposal how to end these atrocities was made, it was pointed out that many kidnappings and enforced repatriations were committed (and tolerated) under the eyes of Chinese authorities. In addition, the human rights situation in Mexico was highlighted in the form of a side event. A dozen of NGOs delivered the report of an independent commission of inquiry on In Defense of Life: Civil Society Observation Mission Report on the Situation of Human Rights Defenders in Mexico. The report shows that HRDs face a worsening situation. Despite laws such as the Law on the Protection of Human Rights Defenders and Journalists (2012) the risk of deadly confrontation rises, while attacks against HRDs are in the majority of cases met with impunity, are not adequately investigated or remedied. Key institutions envisaged in the law are still not operative, and the institution focused on prevention has only been established in Concluding remarks After about one year in office, the High Commissioner for Human Rights has positioned himself as a sharp-tongued, independent analyst not shying away to name the responsible governments and institutions which is uncomfortable for the harmony of states. He offers true solidarity with the victims and the expertise of his office to overcome and resolve the violence against human rights guarantees. In the HRC President of 2015, Joachim Rücker, there was a congenial counterpart at the Bureau s level in order to foster the engagement of civil society with the HRC s work. In addition, the strict time management allowed a larger number of NGOs to take the floor in particular during the time restricted, interactive dialogues. Thus, most of the Geneva-based NGOs identified the President s performance as best practice to be recommend for his successors. To what extent his immediate successor from South Korea as well as subsequent Council Presidencies will follow the positive examples from the 2015 Presidency remains to be seen. Obviously, controversies on a number of issues and country situations will remain; such as the right for peasants, or business and human 6 P a g e

7 rights. The outcome of the voting for the HRC members for does not encourage high expectations regarding a higher level of normative work of the HRC. 2 It seems dubious how countries such as Burundi, only recently identified as on the brink of genocide, oppressing the opposition and restricting public space for non-state actors, were elected to the Council. Conversely, Pakistan could not gain enough support (105 votes) for a consecutive second term, whereas Ethiopia, Germany, Côte d Ivoire, Kenya, South Korea, United Arabic Emirates and Venezuela could achieve it. The entire election process was not as competitive as such term would suggest. Only the group of states of Asia as well as of Latin America and the Caribbean presented more candidates on their lists than there were open spots. After nearly 10 years of existence, it is now up to states and governments to adapt to the innovations for the structure and working methods of the HRC. On the author Theodor Rathgeber, political scientist (PhD), is a lecturer at the University of Kassel (Germany) and freelance consultant on human rights and development policies. Since 2003, he has been an official observer first of the UN Commission on Human Rights, then to the UN Human Rights Council for the German NGO network Forum Human Rights. Contact: trathgeber@gmx.net The views expressed in this publication are not necessarily the ones of the Friedrich-Ebert-Stiftung. Friedrich-Ebert-Stiftung. Geneva Office 6bis, Chemin du Point-du-Jour, 1202 Geneva, Switzerland T: +41 (0) ; F: +41 (0) For details of the election on 28 October 2015 see 7 P a g e