Home Human Rights Archive for category "Human Rights Council" (Page 2)

International Commissions of Inquiry: A New Form of Adjudication?

Published on April 6, 2012        Author: 

Dr Hannah Tonkin is a Legal Officer in the Appeals Chamber of the Special Court for Sierra Leone. She previously worked at the ICTR and ICTY and taught international law at the University of Oxford. She is the author of State Control over Private Military and Security Companies in Armed Conflict, 2011 (ISBN 9781107008014)

In March the International Commission of Inquiry on Libya, created by the United Nations Human Rights Council (HRC), presented its report, finding that “international crimes, specifically crimes against humanity and war crimes, were committed by Qadhafi forces.” The report found that “acts of murder, enforced disappearance, and torture were perpetrated within the context of a widespread or systematic attack against a civilian population.” The report further found that anti-Qadhafi forces also “committed serious violations, including war crimes and breaches of international human rights law.” The Libya Report followed the delivery to the HRC in February of a report by the International Commission of Inquiry on Syria. That Commission found that Syrian government forces “committed widespread, systematic and gross human rights violations, amounting to crimes against humanity, with the apparent knowledge and consent of the highest levels of the State.” [para 126]

The Commissions on Libya and Syria are just the latest in a series of high-profile international fact-finding missions and commissions of inquiry in recent years. These include the 2004 International Commission of Inquiry on Darfur, the 2009 UN Fact Finding Mission on the Gaza Conflict (the Goldstone Report), the 2009 Fact Finding Mission on the Georgian Conflict (discussed here, here and here on EJIL:Talk), the 2010 and 2011 UN Fact Finding Mission and Committee inquiring into the Israeli blockade on Gaza (the HRC Fact Finding Mission and the Palmer Report) (see previous posts here), the 2011 Panel of Experts on Accountability in Sri Lanka (see previous EJIL:Talk! Post here) and the 2011 Bahrain Independent Commission of Inquiry. Most of these commissions had terms of reference that called on them to investigate alleged violations of human rights and international humanitarian law, though others, like the Georgia Commission, have been called to decide on other inter-State issues, such as the use of force.

These commissions of inquiry appear to have become a new mechanism for determining the responsibility of both states and individuals for violations of human rights and IHL. In the absence of universal compulsory jurisdiction by international judicial bodies, these commissions of inquiry are a way in which the international community can obtain an authoritative determination of whether these violations have taken place and who is responsible. These commissions have not replaced, and are not replacing, adjudication. In fact, they will often enhance adjudicative mechanisms where those exist. However, these commissions do seem to be an additional form of resolving, and obtaining authoritative pronouncements on, contested facts and issues of international law.

While many of these commissions are termed “fact-finding missions” or given the mandate to engage in fact-finding, in reality they tend to do much more than this and will often make quite detailed determinations on points of international law. Read the rest of this entry…

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UN Human Rights Council Brings to an End the First Cycle for Universal Periodic Review

Published on February 27, 2012        Author: 

Today marks the beginning of the 19th session of the Human Rights Council, scheduled to run from February 27 to March 23, 2012. This session will also mark the official end of the first cycle of the Universal Periodic Review mechanism, which has seen all 193 member states of the UN undergo a review of their human rights record, creating a baseline for future reviews. The unofficial end of “UPR” (as it is known) happened in October 2011, but with the adoption of the last remaining reports at the 19th session, the international community is officially at a point where we can look back on the first run-through of this new mechanism and discuss changes for the second.

Universal periodic review was one of the proposals made in the lead-up to the World Summit of 2005, with the outcome of the World Summit confirming the creation of a standing Human Rights Council out of the ashes of the old part-time Commission on Human Rights (A/RES/60/1). The idea of the Council serving as a “chamber of peer review” to evaluate the fulfilment by all states of all their human rights obligations was a proposal backed by then UN Secretary-General Kofi Annan. Annan expanded on the idea in an explanatory note published in May 2005 (A/59/2005/Add.1) as an addendum to his “In Larger Freedom” report of March 2005 (A/59/2005). These reports helped focus the discussions taking place between states as they prepared for the World Summit of September 2005, although it was not until March 2006 when the UN General Assembly adopted a resolution specifically on the “Human Rights Council” (as the resolution is entitled), which confirmed that the Council would undertake a universal periodic review (as the mechanism had become known) (A/RES/60/251).

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The development on the international human rights framework on sexual orientation and gender identity

Published on June 21, 2011        Author: 

Allehone Mulugeta Abebe is an Ethiopian diplomat based in Geneva, Switzerland. He serves as a co-chair of the Technical Advisory Group of the Global Commission on HIV/AIDS and Law.  Opinions expressed in this piece do not necessary reflect the views of the institutions he is affiliated with.

On 15 June 2011 the Human Rights Council’s adopted an extremely significant Resolution on “human rights, sexual orientation and gender identity” (A/HRC/17/L.9/Rev.1, available through ODS). It follows the Political Declaration on HIV/AIDS adopted by the General Assembly on 10 June 2011 which for the first time explicitly recognizes how discrimination, violence and stigma underlines the vulnerability and challenges men who have sex with men face in accessing HIV/AIDS services. These instruments underscore the fact that discrimination and stigma against people on the basis of their sexual orientation is a violation of basic freedoms and individuals rights.

The twin global movements centered on the call for the dignity of persons with different sexual orientation and gender identity and people affected by HIV/AIDS have had consequential impact for the development of international human rights law. They have particularly led to the creation of new global institutions to stir and coordinate international response against the epidemic. Institutions such as UNAIDS and the Global Fund to Fight AIDS, Tuberculosis and Malaria have been important sources for the development and elaboration of norms which seek to protect these vulnerable communities. The novelty of these institutions and their role in the development of international law not only stems from the new areas of law they canvassed but also from the direct involvement of CSOs and individuals particularly those living with HIV/AIDs. Several decisions taken by these institutions particularly those relevant to the protection of people with different sexual orientation, sex workers and people who take drugs have influenced decision making by the General Assembly and Human Rights Council.

I have had the privilege of co-chairing, together with the Honorable Michael Kirby, a prominent former judge and a human rights campaigner from Australia, an advisory team to the Global Commission on HIV/AIDS and Law. Launched by UNDP in 2010, the Commission is informed by these global movements of solidarity and trends in human rights, and seeks to encourage legal reforms by generating evidence and right-based recommendations in the context of HIV/AIDS and law.  Among others, the Commission has the purpose of encouraging states to take measures to halt discrimination and stigma as a part of their national response against HIV/AIDS. So far the Technical Advisory Group (TAG) and the Commission have held several regional dialogues and have benefited from inputs and submissions from various stakeholders.  The adoption by the General Assembly of the Political Declaration on HIV/AIDS and by the Human Rights Council of its groundbreaking resolution on “Human Rights, Sexual Orientation and Gender Identity” will profoundly boost the legal and political basis not only of the efforts to address the challenges of HIV/AIDS but also the suffering and discrimination of people with different sexual orientation across the world.

South Africa, which has one of the most liberal constitutions that grants full protection from discrimination on the basis of sexual orientation, initiated the resolution in the Human Rights Council with the support of  key western and  Latin American states. While South Africa initially explained that its proposal sought to establish an inter-governmental forum with the mandate of discussing sexual orientation within the Council, the intense negotiation that ensued led to a resolution with a narrower scope.  But the significance of the resolution is immense. It condemns discrimination and violence based on sexual orientation and gender identity occurring in all parts of the world; mandates the Office of the High Commissioner for Human Rights (OHCHR) to undertake a global survey of discriminatory laws and practices to be finalized by December 2011; and decided to organize a panel during the 19th session of the Council to hold “ constructive, informed and transparent dialogue on the matter.”  The timing coincides with the release of the report of the Global Commission on HIV/AIDs and Law and the holding of the meeting of UNAIDS’s Program Coordinating Board which will specifically discuss the role of an enabling legal environment for the promotion of universal access to prevention,  treatment, support and care services.

As the premiere UN body on human rights, the Human Rights Council plays a key role in the fight against discrimination and stigma. The key decisions by the General Assembly and the Council, however, come in the context of a much broader trend in international human rights law. Human rights treaty bodies and Special Procedures have increasingly cited the particular vulnerability of persons with different sexual orientation and gender identity. States have also put forward key recommendations during the Universal Periodic Review. Regional human rights mechanisms have also taken similar steps. For instance, the African Commission on Human and Peoples Rights has recently established a forum that is looking at the issue of human rights in the context of HIV/AIDS.  All these global and regional efforts not only will help address the specific health problems vulnerable communities suffer but also create a framework for the protection of these persons and groups from discrimination and stigma.

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Goldstone Report on Gaza: A Question of Trust

Published on September 16, 2009        Author: 

I have just skimmed through the Goldstone Fact-Finding Mission’s Report on Gaza that was released yesterday. It is a beast at almost 600 pages, so I was necessarily more quick than thorough. All in all, my impression of the Report is that it is balanced, corroborated and credible. But this is, mind you, no more than an impression. I can pass no judgment on the Mission’s many factual determinations – in line with what I have said before, I can only consider them more credible (or not) than those of the Israeli government and its rival version of reality.

Regrettably, the bias of the majority of the UN Human Rights Council against Israel is evident, as was the case with the Human Rights Commission that preceded it. To what extent this taints the credibility of the Goldstone Mission is, of course, a hotly disputed matter. For Israel, that taint was such that no cooperation with the Mission was possible. For others, the authority and reputation of the Mission’s members and their decision to look at the conflict more broadly than the Council were enough to mitigate the biased mandate.

And again the question is not what the facts are, but whom to trust, and whose account of the facts to believe. This is as true of us, as distant observers, and of the Mission itself. Its members also had to choose whether to believe a particular witness, or expert, or NGO. They also had to take into account the possibility of staging by Hamas or other Palestinian groups of events, or of potential intimidation or instruction of witnesses. Upon reading the report, if at high-speed, it seems to me that the Mission’s members were well aware of this, and the report is riddled with numerous caveats.

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