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Home Archive for category "Human Rights"

SOGI Mandate Passes Third Committee Hurdle

On 21 November 2016, the Third Committee of the General Assembly (GA) voted to uphold the United Nations mandate of the Independent Expert on sexual orientation and gender identity (SOGI) in a very closely fought vote. The decision represents a major stepping stone for the promotion of LGBTI rights, and provides much-needed reassurance regarding the ability of the Human Rights Council (HRC) – and the broader UN machinery – to adequately combat international human rights challenges.

Two main points of contention emerged during discussions leading up to, and during the day of the vote: 1) whether there is a legal basis for the mandate (the substantive argument); and 2) whether the GA has the power to override decisions made by the HRC (the procedural argument). It was the latter argument that generated the most discussion, and will therefore be the main focus of this post.

This post will begin with an analysis of what exactly happened on the day of the vote, and will be followed by an exploration of the two main arguments. The post will end with a discussion on what this vote could mean both in the short-term and long-term.

The day’s proceedings

When formally introducing the resolution to the Third Committee, the African Group had announced an oral amendment to OP2, stating that consideration of resolution 32/2 should be suspended until the 72nd session of the GA, a detail missing from the initial draft which had left it open to the criticism that the mandate was being suspended indefinitely. As noted by the representative for Brazil an optimistic reading of this amendment would have been misleading: specifying that this item will be revisited in one year’s time does not alter the far-reaching negative impact of the move. Furthermore, there are no reasonable grounds to think that the position taken by the African Group would change by next autumn. Read the rest of this entry…

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How to Bridge the Gap? Corporate and Government Surveillance Examined at the UN

Published on December 7, 2016        Author: 

On 21 November, the UN General Assembly Third Committee adopted the draft resolution on the right to privacy in the digital age. This came at the same time the UK passed a law (the Investigatory Powers Act) which codified what are arguably the most extreme surveillance powers in the history of any western democracy.

This is the third time the UN General Assembly has adopted a resolution on the topic, and as it did in 2014, the UN has called on all states to review their surveillance legislation, policies, and practices “with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law”.

This comes at a time in which governments around the world are adopting laws that give wider surveillance powers to state security agencies, beyond what is permitted under existing human rights law. Just to name a few, Privacy International had documented this trend in a range of countries, including in China, Colombia, France, Kenya, the Netherlands, Pakistan, Poland, Switzerland, and the United Kingdom.

So, which part of effective implementation of human rights law do governments need explained? Read the rest of this entry…

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The Kunduz Affair and the German State Liability Regime – The Federal Court of Justice’s Turn to Anachronism

Published on December 5, 2016        Author: 

On 6 October 2016 the Federal Court of Justice (henceforth “Court”) decided on an appeal against the Higher Regional Court of Cologne’s dismissal of two actions for compensation brought against the Federal Republic of Germany (III ZR 140/15, only available in German): Abdul Hannan sought compensation for the death of two of his sons in the amount of 40.000 Euro, Qureisha Rauf, a mother of seven, sought alimentation for the death of her husband and father of her children in the amount of 50.000 Euro. The death of their relatives was the result of a fatal airstrike ordered by Colonel Klein who was in charge of the Provincial Reconstruction Team in Kunduz in the northern part of Afghanistan. The PRT was institutionally embedded in the framework of the International Security Assistance Force (ISAF). Whilst Klein was operationally subordinated to the ISAF commander and in the end the NATO Commander-in-Chief he remained within the chain of command of the German Federal Army ultimately being subject to orders of the German Ministry of Defense. The ordered strike was directed against two fuel tanks previously stolen by Taliban from PRT’s premises which were stuck in a sandbank close by. Fearing that these tanks would be used for an attack against the PRT camp Klein commanded their destruction after receiving the information of a military informant that no civilians were present at the relevant location which infrared pictures delivered by US-American fighter aircrafts seemed to support. In retrospect these assumption proved wrong: The attack led to the death of 100 to 150 people, mostly civilians who gathered around the fuel tanks out of curiosity, others were apparently forced by the Taliban to assist with the recovery of the tanks (with regard to the criminal investigation against Klein see here).

A Legal Bombshell

The lower courts were unable to find that Germany incurred liability based on Art. 34 Basic Law in conjunction with § 839 German Civil Code since the claimants failed to establish that Klein violated ius in bello norms – Art. 51, 57 of the First Additional Protocol and Art. 13 of the Second Additional Protocol to the Geneva Conventions were particualrly in question. The Court, however, went beyond that by asserting that the state liability regime does not apply with regard to actions of the German army in the context of armed conflicts per se. The Court’s finding can be considered a legal bombshell since this question has been left open within previous judgments (see the Court’s “Varvarin” judgment of 2nd November 2006, III ZR 190/05). Until now both the Court itself as well as the Federal Constitutional Court (FCC) applied an “even if” argumentative strategy in similar cases: Not explicitly deciding whether actions within armed conflicts fell into the scope of the liability regime, they limited themselves to finding that even if they did, compensatory claims would remain unsuccessful since other conditions – especially a breach of a duty on part of German state officials – were not met (see FCC, “Varvarin” decision of 3th August 2013 – 2 BvR 2660/06, 2 BvR 487/07 – available in English).

Viewed against the background of German constitutional law as well as obligations stemming from international law – especially the European Convention of Human Rights (ECHR) – this decision suffers from methodological and substantive deficiencies and is hardly tenable. Read the rest of this entry…

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The Legal Protection of Mass Graves

Published on November 18, 2016        Author: 

Mass graves have been found all around the world, in Uganda, Burundi, The Philippines, Nepal and India. Yet, there is no definition of the term ‘mass grave’ in international law. Our common understanding is derived from pictures of history and news reports according to which ‘mass grave’ describes a site containing a multitude of human remains; a site of harrowing human loss, suffering and unimaginable acts of cruelty.

An Associated Press study published on 30 August 2016 revealed that 72 mass graves have been located in Iraq and Syria as a result of the occupation of the Islamic State. The estimated number of bodies inside them, based on both excavation findings as well as memories of witnesses and survivors, ranges from 5200 to a staggering 15000. The majority of these mass graves were located in Iraq, most in territory too dangerous to excavate. In Syria, once certain areas are secure enough to enter, more previously unreported sites may be identified.

A week after the Associated Press publication, the Group of the Progressive Alliance of Socialists & Democrats began to advocate for European support to preserve mass graves in Iraq and Syria. Despite this, the response of the international community has been as scarce as academic reflections on the topic.

The protection of mass grave sites and their content is paramount since they provide invaluable information for both the prosecution of perpetrators of international crimes, and the realisation of the right to truth, effective remedies and reparation for families of the deceased. In the following, we draw attention to the lack of legal protection, and the dire need for legal regulation and its effective implementation with respect to the treatment and maintenance of mass grave sites. Read the rest of this entry…

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What is the Future of the SOGI Mandate and What Does it Mean for the UN Human Rights Council?

Last June, human rights defenders the world over celebrated the historic step taken by the Human Rights Council (HRC) to create a UN Special Procedures mandate on sexual orientation and gender identity. It had taken years of advocacy by the LGBTI and wider human rights community, and careful manoeuvering within the UN system to attain this belated but historic victory. For many years, LGBTI issues were addressed through reports and resolutions on extra-judicial and arbitrary killings and on violence against women, as well as through joint statements by UN member States.  However, since the ground-breaking Toonen vs Australia decision of the Human Rights Committee in 1994, the UN system has gradually improved with respect to the recognition and the level of attention it has paid to the particular threats faced by the LGTBI community. In relation to the HRC specifically, there has been a gradual build-up to the appointment, from a subject specific resolution in 2011 (17/19), which commissioned a special report  (HRC/19/41) by the Office of the High Commissioner for Human Rights (OHCHR), to a panel discussion in March 2012, to a follow-up resolution in 2014, and an updated report in 2015.

Human Rights Council resolution 32/2 which created the SOGI mandate was not universally endorsed by States; indeed, it was adopted by a vote of 23-18 with 6 abstentions, a noticeably high number of opposing votes in the light of general voting patterns, even among similarly contentious mandates, such as the ones on unilateral coercive measures (vote of 31 in favour, 14 against and 2 abstentions); international solidarity (33 in favour, 12 against, 1 abstention); and the promotion of a democratic and equitable international order (29 to 14, with 4 abstentions). Vitit Muntarbhorn, the expert charged with carrying out the mandate, was appointed in September in line with the rules of procedure of the HRC. Although reports of the Council are subject to endorsement by the General Assembly (GA), in practice this is generally a formality. As is typical following appointment by the Council, Mr. Muntarbhorn has already begun working on this long overdue mandate.

However, in an unprecedented move, the work of the mandate is now being threatened by the African Group of UN Member States, Read the rest of this entry…

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What’s the Point of ‘Naming Names’ in International Inquiry? Counseling Caution in the Turn Towards Individual Responsibility

Published on November 11, 2016        Author: 

Introduction

In recent years international commissions of inquiry (‘commissions’) have been drawn into the realm of individual responsibility under international law. This is vividly illustrated by the Human Rights Council’s recent request that the International Commission of Inquiry on Syria investigate events in Aleppo to:

“identify all those for whom there are reasonable grounds to believe that they are responsible for alleged violations and abuses of international human rights law, to support efforts to ensure that perpetrators… are held accountable”.

Similar mandates have been awarded to several other UN inquiries, including on Darfur, Guinea, Libya and the Central African Republic. In practice, most commissions identified suspected individuals confidentially. Exceptionally, the commissions on Guinea and Timor-Leste published names in their public reports.

Making findings of (alleged) individual responsibility is a relatively novel development in the fact-finding context. It reflects an idea that human rights are best protected when individuals are held to account for their acts. But it stands in a certain tension to the quasi/non-judicial nature of these bodies. Similar issues have been considered in relation to truth commissions. Yet the inquiry context poses different challenges. Commissions are not intended to replace criminal trials or function as truth commissions ‘lite’; rather, they may recommend such accountability mechanisms as follow-up. Commissions also face very practical challenges in terms of time pressures, resource limitations and, increasingly, a lack of access to the territories of concerned states, all of which can impede their investigations.

The move towards the identification of individuals is part of a certain trend towards the criminalisation of international inquiry. In this post, we would like to investigate to what extent this is helpful. We  discuss some normative and methodological questions arising from individualised accountability and proposes some possible ways forward. Read the rest of this entry…

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Should Commitments to Implementation Factor into Elections to the Human Rights Council?

Published on November 8, 2016        Author: 

Following the recent celebration of the UN Human Rights Council’s tenth anniversary, one of the key questions for its next decade is how it can play a more effective role in promoting the implementation of human rights standards and norms and its own and other UN bodies’ recommendations. This shift is critical given the serious deficiencies in implementation, despite the former UN Secretary General Kofi Annan’s call almost 15 years ago for a focus on the ‘implementation of the commitments we have made’ in an ‘era of commitment and implementation’. The recent Universal Rights Group Glion III report points to ‘important signs that UN Member States are increasingly turning their attention to the question of implementation, and how best to support it’ including within the Council. Recently, the President of the Council remarked that the Universal Periodic Review process holds ‘great potential to lead the charge’ in this regard. Tomorrow, the Council’s UPR Working Group will hold a half day panel discussion on ‘national reporting processes and structures’ as a key means to achieving implementation.

On 28 October, the UN General Assembly held elections for 14 new vacancies in the Human Rights Council. In this post, I ask whether and how the election process could provide a further lever to the burgeoning implementation project within the Council. I use the example of the UK’s recent re-election to illustrate how a deeper connection between implementation and election to the Council could be made, particularly through pledges to establish national implementation and follow-up mechanisms.

Expectations of Council Members

In 2006, the General Assembly in Resolution 60/251 outlined the requirements for membership of the Council as: (1) ‘the contribution of candidates to the promotion and protection of human rights’ (2) the submission of ‘voluntary pledges and commitments made thereto’ (4) the ‘uphold[ing of] the highest standards in the promotion and protection of human rights’ (5) ‘full[] cooperat[ion] with the Council’ and (6) agreement to ‘be reviewed under the universal periodic review mechanism during their term of membership’. The Resolution also indicated that the commission of gross and systematic human rights violations could result in the suspension of membership. Read the rest of this entry…

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Author’s Response: Human Rights Obligations of Non-State Armed Groups

Published on November 7, 2016        Author: 

First of all, I would like to extend my sincere thanks to Jonathan Horowitz, Cordula Droege, and Marco Sassoli for taking the time to read my book and to engage with its arguments. All three discussants raised a number of interesting questions and although I cannot address them all here due to space limitations, they raised a number of issues that I will continue to think through and develop further. For the purposes of this post I have chosen to focus on four overarching topics: the challenge to State sovereignty posed by the regulation of armed group activity; the question of how human rights law obligations can be applied to non-State armed groups; the consideration of armed groups not party to a non-international armed conflict; and the question of compliance.

Before proceeding, however, I would like to flag a few issues. Although I argue that human rights law obligations can, and should, be applied to armed groups in certain situations, the State remains the original duty bearer. The fact that the State’s obligations are the starting point act as a safeguard to ensure that the State cannot rely upon the application of human rights obligations to armed groups to circumvent its own responsibilities (see the ‘respect, protect, fulfil’ framework discussed in the introductory post). I should also note that I regard the application of human rights obligations to armed groups as necessary but not ideal. In normal situations the State remains the appropriate guarantor of human rights. It is only in exceptional circumstances that efforts should be made to ensure that human rights are protected to the extent possible by extending obligations to armed groups. Finally, Sassoli makes an interesting point regarding the gradated context-dependent application of customary international human rights law. This appears sensible, and is in keeping with the approach to treaty law presented in the book; it requires further consideration. Read the rest of this entry…

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Two Fascinating Questions: Are all subjects of a legal order bound by the same customary law and can armed groups exist in the absence of armed conflict? Book Discussion

Published on November 4, 2016        Author: 

Armed groups are not very popular entities in today’s world, especially among states which invariably label them as terrorist. That such groups are bound by international humanitarian law (IHL) of non-international armed conflicts is clearly prescribed by Article 3 common to the Geneva Conventions, but this remains difficult for States to digest. Having obligations under the IHL of NIACs does not solve all the problems associated with such groups, because its rules are rudimentary, do not deal with how a territory must be administered and do not even apply to those acts of administration (e.g. in the areas of justice or detention) lacking any nexus to the armed conflict. It is therefore the great merit of Daragh Murray that his book forcefully argues – following in the footsteps of others such as Andrew Clapham, while providing greater detail and some new ideas – that armed groups have human rights obligations and explores what this can mean in practice.

I agree with the aim of the book and with most of the arguments employed. Some will, even in good faith, object to its aim, others will qualify Murray’s arguments as very forceful de lege ferenda, but argue that they go beyond a possible interpretation of lex lata. I find the very varied, often alternative, arguments presented for why armed groups can be subject to international law very nuanced, complete and convincing (with one exception discussed hereafter). The proposed gradated – or sliding scale – approach to the application of Human Rights to armed groups (pp. 172-199), based inter alia upon the classical distinction between obligations to respect, fulfil and protect is equally convincing and Murray’s application of this approach to three selected human rights is both innovative and realistic.

However, the argument provided for why armed groups are bound by existing human rights treaties (although they never accepted them formally) is in my view comparatively short, very absolute and less well-reasoned (pp. 164-169). Read the rest of this entry…

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