Meeting the challenge:

Transforming the Commission on Human Rights into a Human Rights Council

I. Introduction

The United Nations (UN) Secretary-General, Kofi Annan, has taken the bold initiative to propose that human rights be given greater prominence in the UN. Amnesty International fully supports the Secretary-General’s initiative to achieve that aim. A more authoritative place for human rights in the UN system accords with the vision of the UN Charter which proclaims human rights and fundamental freedoms as a purpose of the UN.

The Secretary-General’s proposals to strengthen the UN’s human rights machinery are made in a comprehensive report: “In larger freedom: towards development, security and human rights for all”.¹ The report makes wide-ranging proposals to governments to strengthen the UN and make it more responsive to the challenges of the new Millennium. They range from extending membership of the Security Council to make it more representative, to scaled-up commitments to achieve the 0.7 per cent Official Development Assistance target before 2015, to transforming the Commission on Human Rights (the Commission) into a new Human Rights Council. The new Council is conceived as a standing body, smaller than the Commission, in session throughout the year, to be created as a principal body of the UN (requiring Charter amendment) or as a subsidiary body of the General Assembly.

In the new structure, human rights would be given central place together with development and security as one of the three pillars on which the UN is built.² Amnesty International supports the Secretary-General’s view that there will be no development without security, no security without development, and that “we will not enjoy either without respect for human rights”. Governments already underlined the close connection between these three issues when they adopted the 1993 Vienna Declaration and Programme of Action, and proclaimed that universal respect for and observance of human rights not only contributes to stability but also to improved conditions for peace and security, and social and economic development.

The Secretary-General presents his report at what he characterizes to be “a defining moment in history”. The High Commissioner for Human Rights recently told the Commission: “We are arguably in the midst of the greatest reform initiative ever undertaken by our Organization”. Amnesty International believes that governments, members of civil society and others must seize the historic opportunity presented by the September 2005 Summit of Heads of State to confront the challenge posed by the Secretary-General to build a stronger, more authoritative and effective UN machinery to promote and protect human rights. It must build on the major achievements of the human rights system, notably those of the Commission, but must also address the Commission’s shortcomings, including the resort to double standards and the pursuit of narrow self-interests that have undermined its credibility. Determined political will is needed now to construct a better human rights system. The September Summit will, according to the Secretary-General, “offer us our best – perhaps our only – chance to ensure a safer, more just and more prosperous world in the new century”.³

This paper focuses specifically on the Secretary-General’s proposals to transform the Commission on Human Rights into a Human Rights Council. Other aspects of the Secretary-General’s proposals will be considered in separate Amnesty International documents. In the sections below Amnesty International reviews achievements and shortcomings of the Commission and identifies features of its work that should be preserved, and possibly strengthened, in a new human rights body. Finally, the organization offers views on key elements that should inform the discussion to create a Human Rights Council.

II. Achievements and shortcomings of the Commission on Human Rights

“Many of us thought that lack of standards for human rights the world over was one of the greatest causes of friction among the nations, and that recognition of human rights might become one of the cornerstones on which peace could eventually be based”.⁴

Eleanor Roosevelt, 1948

Achievements of the Commission on Human Rights

Despite persistent criticisms of the Commission as an effective mechanism for the promotion and protection of human rights, some aspects of its work are extremely valuable and must be preserved, and strengthened, in a new human rights body:

Creating the space for dialogue

Since its establishment, the Commission has provided a unique international forum for human rights discourse. It regularly attracts more than 3,000 participants, including at its recent 61^st session 88 senior government officials, as well as victims, national human rights institutions, UN agencies and non-governmental organizations (NGOs) who provide it with information about human rights situations in all regions of the world and contribute expertise to the thematic issues on the Commission’s agenda.

Prompting governments to act

Amnesty International has been told by victims and national NGOs that the resolutions adopted by the Commission and the reports published by its Special Procedures are extremely important as statements of both concern and intent by the international community. Although it can be difficult to measure the impact of the Commission’s actions, especially at the national level, the lengths to which states go to evade Commission scrutiny are a clear indication of their sensitivity to criticism by that body. Sometimes the risk of scrutiny can be a powerful incentive for states to act to improve the human rights situation.⁵ States also use the annual session to announce positive human rights initiatives such as signature or ratification of human rights treaties or an invitation to Special Procedures to visit their country.

Building a framework for human rights protection

The elaboration of treaties and other standards has been an on-going task and constitutes a major accomplishment of the Commission, ever since its inception. However, the elaboration of some standards has been lengthy and cumbersome.⁶ Nevertheless, during the last 60 years, the Commission has built a solid framework for international human rights protection, and this important work continues -- for example with the drafting of a legally binding instrument for the protection of all persons from enforced “disappearances” and a Declaration on the Rights of Indigenous Peoples.

Dealing with all human rights

Overthe last decade, the Commission has broadened its agenda to include the full spectrum of civil, cultural, economic, political and social rights, including the right to development. Thematic mechanisms on the rights to health, to adequate housing, and to education now complement the Commission’s earlier mandates on “disappearances”, extrajudicial executions and torture. The creation of Special Rapporteurs on economic and social rights has not only focussed more attention on violations of these rights, but also on the practical obstacles faced by states in their realisation. The Commission has also addressed such core development concerns as universal access to education, health care, and adequate food, as well as the over-arching right to development.

Developing a system of independent human rights experts

Another major legacy of the Commission is its system of “Special Procedures”. These independent experts are mandated by the Commission. Their functions include carrying out country visits, intervening with governments in individual cases of human rights violations and undertaking studies.⁷ Described as the Commission’s “eyes and ears” they constitute a critical element in the implementation of international human rights standards, by providing an objective assessment of human rights in countries and territories and making recommendations for strengthening human rights protection at the national and international levels. The Special Procedures can also perform an important early warning function, by identifying human rights problems which, if left unattended, could lead to even larger problems.⁸ In 2004, the Special Procedures provided the Commission with 90 reports, the General Assembly with a further 20, visited some 40 countries and corresponded with 164 states on alleged violations against thousands of individuals.

Yet the Special Procedures’ system is undermined by the failure of many states to co-operate with mandate-holders and implement their recommendations, as well as a chronic lack of adequate resources to carry out their activities effectively. Furthermore, the work of the Special Procedures can be of varying quality. Nevertheless, the system of Special Procedures makes an invaluable contribution to the UN’s human rights machinery. Amnesty International welcomes the initiative by the Secretary-General to improve their analyses, to ensure selection of highly-qualified appointees and to increase support for the Special Procedures.⁹

The Special Procedures and other UN human rights expert bodies contribute only marginally to the political decision-making processes of the Commission.¹⁰ Their reports receive little attention by the Commission, and are usually discussed only very briefly.¹¹This is one of the reasons why the Commission lacks a consistent and objective approach to its work.

Shortcomings of the Commission on Human Rights

Political selectivity in responding to situations of massive violations

Power politics and double standards have, separately or together, prevented the Commission from addressing, or even discussing, widespread or serious human rights violations in many countries. All efforts to address selectivity and double standards must start from the premise that the UN must promote and encourage respect for human rights and fundamental freedoms in all countries regardless of political considerations.¹²

While recognizing the important contributions which the Commission has made to the promotion and protection of human rights, Amnesty International has consistently challenged the Commission to effectively address gross human rights violations. In 1977, for example, the Commission failed to investigate a persistent pattern of gross and flagrant violations of human rights perpetrated by the regime of Life-President Idi Amin in Uganda, despite numerous communications from NGOs and a recommendation from the Commission’s own Sub-Commission on the Prevention of Discrimination and Protection of Minorities. Also, in the late 1980s, the Commission repeatedly ignored information about human rights violations on a massive scale in Iraq. It was only after international condemnation of Iraq’s invasion of Kuwait in 1991 that the Commission found the political will to appoint a Special Rapporteur on Iraq. Ironically - and as an indication that the discourse is no less politicized now - having retained the mandate on Iraq for 13 years, the Commission then terminated it in 2004 at the very time when human rights monitoring and protection was critical. At its most recent session, the Commission again failed to take action on Iraq. The Commission’s willingness to address specific country situations has varied over time; the current disturbing trend is towards increased unwillingness to address country specific situations of human rights violations.

The failure of the Commission to act in the face of grave human rights violations perpetrated by powerful states and, increasingly, their allies, has also contributed to charges of selectivity. This applies in particular to the permanent members of the Security Council. In 2000-2001, the Commission acted for the first time against a permanent member of the Security Council, although subsequent attempts failed.¹³Selectivity has also tainted Commission decisions to convene special sessions: the Commission has held special sessions to consider situations of massive human rights violations in the case of the former Yugoslavia (1992), Rwanda (1994), East Timor (1999) and violations of the Palestinian people by Israel (2000). Yet it failed to consider Burundi at the same time as Rwanda in 1994, even though there were common characteristics of the situation in Burundi and Rwanda and a strong inter-relationship between the two states.¹⁴ Likewise, the Commission ignored a joint appeal by NGOs in 1997 calling on it to convene in special session to establish an international investigation into massacres and other abuses in Algeria, where the already critical human rights situation had worsened. ¹⁵

Procedural tactics are increasingly deployed by some governments to stifle action on specific country situations. Known as “no action” motions, such tactics have been used to avoid, for example, consideration of draft resolutions on China and Sudan. The European Union has traditionally opposed the use of “no action” motions, but in 2004 it considered using an equivalent procedural device, an “adjournment of debate”, had Cuba pursued its resolution on prisoners held by the United States of America in Guantànamo Bay.

Flawed working methods

The Commission’s highly compressed and politicized methods of work seriously hamper its ability to deal effectively with human rights on an objective basis, to tackle crisis situations or to take timely action to prevent them. At present, the Commission sits for one annual session of six weeks in Geneva. Even when supplemented by a few weeks’ attention of the Third Committee of the General Assembly in New York, this does not allow for sustained attention to all human rights. A Human Rights Council must therefore be able to act throughout the year, as the Secretary-General has recommended.¹⁶

Another procedural factor which inhibits constructive discussion of human rights at the Commission is that the analysis of the human rights situation and the corresponding policy response are combined in one process, as the Commission works largely on the basis of draft resolutions presented by governments without first, routinely, reviewing the situation in a particular country in an objective manner. To ensure an objective and transparent country review process, Amnesty International believes it may be helpful to separate the analytical review from the political response as is done in other political bodies. ¹⁷

Conclusion

Despite its many achievements, it is clear that the Commission does not address many of today’s complex human rights challenges in a timely, sustained and impartial manner. Amnesty International shares the view of the Secretary-General who identified the Commission as suffering a “credibility deficit… which casts a shadow on the reputation of the United Nations system as a whole”.¹⁸ It will never be possible to completely eliminate the politics from the actions of an intergovernmental body, but a range of measures can be taken to minimize the negative impact of excessive politicization in a new Human Rights Council.

III. A Human Rights Council

".... no state has cause for complacency: no human rights record is perfect.”

"The Commission must take the lead in developing more effective approaches that allow for dispassionate analysis and focused, contextualized, calls for action, together with sustained, constructive attention, in order to help resolve issues that are our collective concern and responsibility.”

Louise Arbour, High Commissioner for Human Rights,

Opening Statement to the 61^st Session of the Commission on Human Rights

Any efforts to establish a new principal human rights body of the UN must take serious account of the fact that the Commission’s authority and legitimacy have been undermined by selectivity and double standards. The working methods of a new human rights body must reflect that “no human rights record is perfect”; therefore all countries’ human rights records must be objectively reviewed. The Secretary-General has stated that the main intergovernmental body dealing with human rights should have as its principal task “to evaluate the fulfillment by all states of all their human rights obligations” and that “equal attention will have to be given to civil, political, economic, social and cultural rights, as well as the right to development”.¹⁹ Amnesty International believes that any new approach must allow for better promotion and protection of all human rights on the basis of a sustained, depoliticized process of authoritative, impartial and objective analysis. International cooperation in promoting and encouraging respect for human rights and fundamental freedoms and the sovereign equality of UN member states demands that every country be accountable for its human rights record.

A Human Rights Council must preserve the following essential characteristics which have been crucial for the Commission’s achievements: power to effectively and publicly address serious human rights situations, maintaining the existing functions and responsibilities granted to the Commission under ECOSOC resolutions 1235 and 1503 (adapted as necessary to suit the needs of a Human Rights Council); the system of independent thematic and country specific human rights experts known as the “Special Procedures”, but with enhanced coherence and support; the consultative status of NGOs based on Article 71 of the UN Charter and current practices of active NGO engagement with the Commission.

Furthermore, Amnesty International identifies the following additional elements as central to any discussion to create a Human Rights Council:

Mandate

A Human Rights Council must promote and protect all human rights of all persons in all countries at all times. To achieve this over-riding objective it should:

• Oversee and contribute to the improved implementation of human rights standards and commitments and identify needs for human rights capacity-building;

• Provide initial response to human rights crisis situations and effectively address situations of serious human rights violations;

• As the principal political human rights body, provide human rights leadership and support effective mainstreaming of human rights throughout the UN;

• Lead the development of new human rights standards and instruments.

Status

The place of a Human Rights Council in the UN system must correspond to the primacy that the UN Charter accords to international cooperation in promoting and encouraging respect for human rights and fundamental freedoms, as further recognized in the Vienna Declaration and Programme of Action and the Security Council’s increasing attention to human rights matters. A Human Rights Council should not be a subsidiary body of ECOSOC.

Membership

Membership of a Human Rights Council should be open to all countries from all regions. Universal membership would contribute to enhancing the legitimacy of a Human Rights Council. If, however, a smaller body is preferred, all member states must have the opportunity to serve on the Council. One means to help ensure that all members have the opportunity to serve on a body smaller than the 53-member Commission, as now proposed, is to establish that a retiring member shall not be eligible for immediate re-election.²⁰ All states seeking election to the Council should make specific human rights pledges outlining steps they would take to promote and protect human rights.

Sessions

A Human Rights Council should be formally in session throughout the year. It should convene at least one annual extended regular meeting to hear an authoritative annual report by the High Commissioner for Human Rights setting out the important issues for the year’s agenda, to hold a high-level meeting and to enable representatives of NGOs and national human rights institutions to contribute directly to debate in the Council. Shorter regular meetings could be held throughout the year to address routine matters on its agenda. A Council must also be able to convene focused sittings throughout the year, for instance, to deal effectively and in a timely manner with crisis situations or to deal with specific human rights situations that warrant the Council’s special attention. A Human Rights Council would normally convene in Geneva but have the possibility to sit in other locations, including New York.

Adequate funding to support a Human Rights Council

A Human Rights Council will require dedicated financial and personnel resources to enable the body to function effectively and to implement its decisions. Funds must be determined separately from those required by the Office of the High Commissioner for Human Rights.²¹

Objective review of human rights situation in all countries

“Clearly, there should always remain the capacity and means for states to raise concern in instances of grave human rights emergencies. And, equally clearly, doing so is fraught with dangers of selectivity and politization. I simply suggest, however, that were it to be done against the backdrop of universal scrutiny, those dangers might be minimized.”

Louise Arbour, High Commissioner for Human Rights,

Closing Statement to the 61^st Session of the Commission on Human Rights, 22 April 2005

The main function of a Human Rights Council should be to monitor and contribute to the improved implementation of human rights standards and commitments in all countries. There must be greater consistency and transparency in analyzing, discussing and engaging in dialogue with member states about ensuring compliance with human rights standards. This objective review process would form a basis to identify obstacles to the realization of human rights and capacity-building needs in each country. It would be the mainstay for the Council’s decisions about country situations.

• The objective review of country situations should be designed to ensure that the same standards and methods are applied to all states. Its aim would be to gain a fuller understanding of each member state’s human rights policies and practices. The review should be based on objective information and data. ²²

• A routine review should be based on dialogue with representatives of the state, members of a Human Rights Council and UN human rights experts. NGO representatives must be able to contribute to that process with written submissions and oral statements.

• The review would be supported by information provided by the Special Procedures, the Treaty Monitoring Bodies and other experts. For this purpose, the High Commissioner for Human Rights could prepare a public country dossier on the basis of information in their reports and information from UN sources in the field, highlighting specific issues for discussion. The government of the country under review should be asked to present a statement of its human rights policies and practices, but would not be required to produce a report for the review.

• The UN’s human rights experts and the Office of the High Commissioner for Human Rights should assist in identifying action points for the implementation of human rights standards which could include assistance and institution-building as well as implementation of human rights commitments. To this end, a small body of independent and authoritative experts could be appointed by the High Commissioner for Human Rights and approved by a Human Rights Council.

• A Human Rights Council must also have the ability to give special attention to serious situations that the objective review identifies as requiring such attention. The small body of experts proposed above could identify, on the basis of up-to-date information compiled in the public country dossiers, any situations that require such special attention.

• The objective review process should not preclude a Human Rights Council from responding expeditiously to urgent and acute human rights situations that warrant its special attention.

Need for decisive action

”The gap between what we seem to promise and what we actually deliver has grown. The answer is not to draw back from an ambitious human rights agenda, but to make the improvements that will enable our machinery to live up to the world’s expectations.”

Kofi Annan, Secretary-General,

Address to the 61^st session of Commission on Human Rights, Geneva, 7 April 2005

In light of the role of human rights as one of the central pillars of the United Nations, any transformation of the Commission into a Human Rights Council must therefore be compatible with other measures taken throughout the UN system to improve respect for human rights. For example, a Human Rights Council must contribute its expertise effectively to the human rights work of the Security Council and of other UN bodies and agencies.²³

A change in name and elevation in the UN organizational hierarchy, raising the principal political human rights body to become one of three central pillars of the UN system, would be an important beginning. In themselves, however, such measures will not be enough to address the major shortcomings of the Commission. A whole range of measures must be taken and essential elements of the Commission must be preserved in the process.

Heads of State meeting in New York in September 2005 have a unique opportunity to demonstrate the political will to “raise human rights to the priority accorded to it in the UN Charter”.²⁴ As governments prepare for this important summit, Amnesty International urges them to take the necessary steps to transform the Commission into a Human Rights Council that is strong, effective and authoritative, that preserves essential characteristics of the Commission and that builds on the elements identified in this paper as central to any discussion of a Human Rights Council.