General attack on Special Procedures

Adrien-Claude Zoller

THE annual reports thematic rapporteurs constitute the central cornerstone of the Commission's debates under Item 10 (economic, social and cultural rights) and Item 11 (civil and political rights).

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 when 500,000 deaths were already on the record. Both the Commission's members and the UN Centre for Human Rights had received an intimation of what was hatching in Rwanda one year earlier in the report of Mr. Bacre Waly Ndiaye, the Special Rapporteur of the Commission on summary executions, who had visited the country in April 1993.

During the 49th session (1 February - 12 March 1993), the Commission (with Rwanda a member!) had decided to keep Rwanda under its confidential procedure. Available since June 1993, Mr. Waly Ndiaye's report described in detail preparations for the impending genocide. Notwithstanding  this reliable and distressful information, the members of the Commission decided in March 1994 to continue discussing the Rwandan situation under the confidential procedure.

During the third week of the current 59th session, many member States with often deplorable human rights records have argued that finger-pointing is counterproductive and that country resolutions are politicising the Commission's debate. Instead, they argued, the Commission should focus on prevention and promotion. The historic failure of the Commission to extend assistance to the Rwandan people is a case in point for examining the soundness of their claim.

Origins of the thematic procedures

It cannot be repeated often enough that the Commission's special procedures have their roots in initiatives taken by the Non-Aligned Countries who during the 60s and 70s insisted on establishing procedures to investigate the human rights situation in Southern Africa and the Arab Occupied Territories. Since no majority was found in the Commission, they successfully turned to the UN General Assembly which set up groups of independent experts on these two situations, charged with collecting information from reliable sources, including witnesses and victims. The special procedures therefore in no way constitute a Western invention.

Chile (1975) marked the third exception the UN allowed to the holy principles of non- interference and State sovereignty after a "push" from the General Assembly.  Appointing a Special Rapporteur on Equatorial Guinea, the Commission found the next exception in Sub-Saharan Africa. The record now marked four exceptions from four different regions, which together constituted a landmark in the evolution of the U.N. human rights programme, the basis for a pattern beyond exceptions.

Argentina

The end of the 70s was dominated by the awful crimes committed by the military junta in Argentina. Despite a campaign by Amnesty and initiatives by Pax Romana, Pax Christi, and the International Commission of Jurists, who brought Argentine victims and relatives before it, the Commission did not manage to overcome its political divisions to set up a similar investigative procedure for Argentina. In 1980, a compromise was found: instead of a rapporteur on Argentina, the Commission appointed a working group of five experts (one per region) to report on the foremost crime committed by the military junta, that of enforced or involuntary disappearances.

Since then, year after year the Commission has added further thematic procedures. Most of them take the form of a mandate given to a single expert, rather than a more expensive working group. Each mandate and title is established by a specific resolution of the Commission which has to be confirmed by the Economic and Social Council (ECOSOC). From the very beginning, the experts have been appointed by the Chair of the Commission.

Thematic Rapporteurs

Called Special Rapporteurs, Special Representatives or Experts (their title determined by their mandate), the experts are not based in Geneva. They are unpaid and often do not even have the support of a full-time civil servant at the United Nations. The quality of their work depends both on the information they receive and on the competence and commitment of the experts themselves. NGOs with consultative status, witnesses, victims and their families can lodge complaints and submit communications to the procedure concerned at its Secretariat in the Office of the High Commissioner for Human Rights in Geneva.

The primary objective of each procedure is to study a human rights theme, to analyse the pattern of the specific human rights abuses referred to in the mandate (e.g. circumstances leading to torture), in order to submit to the Commission a yearly report containing recommendations on measures to be taken in the field of standard-setting and implementation, both at the international and national level. Most of the information on which reports are based comes from non-governmental sources, with NGOs, victims, defendants and witnesses submitting information on concrete cases of human rights violations.

Procedures  

Each rapporteur, expert or working group adopts its own working methods which are summarized at the beginning of each report. The thematic procedures have two options for transmitting complaints. If immediate measures to protect victims are required, most of the thematic rapporteurs have the Commission's permission to send urgent appeals to the governments concerned. These interventions are of a humanitarian nature and require the government to take urgent measures to protect the physical integrity of the alleged victim. The second mechanism consists in communications: once information has been considered reliable by the mandate holder, cases are transmitted to the government concerned which is then free to present its own version of the events.

When the number of cases received from one particular country reveals a consistent pattern of abuses or when the rapporteur feels that the situation in a country might usefully warrant in-depth study, he/she can address a request to the government concerned for visiting the country. Reports on country visits are generally appended to the main report. They cast an invaluable spotlight on country situations. Many rapporteurs also follow-up on their recommendations to specific countries, so for instance Mr. Cumaraswamy (Rapporteur on the independence of the judiciary) on Italy this year.

Although different in nature, four other working groups should be added to this list, namely three inter-governmental (and open-ended) working groups on the right to development, on foreign debt and the effects of structural adjustment policies, and on racism (follow-up to the Durban Conference), and a group of five eminent experts on racism (appointed by the Secretary General). Finally, the Special Rapporteur on disability (appointed by the Commission for Social Development) also reports to the CHR.

Problems with the thematic procedures

Undoubtedly conditions for the thematic procedures have improved over the years:  for instance, rapporteurs are now allowed to issue press statements and the Commission now extends most mandates for terms of three years (rather than annually).

However, the special procedures system is facing serious difficulties. Financial resources are lacking as are, quite often, full-time assistants. Moreover, the staff assigned to the mandates is rotated frequently; the Office of the High Commissioner lacks coordination; a huge backlog on cases submitted for examination is piling up, especially with the Working Group on enforced disappearances. Furthermore, the constant creation of new mechanisms had a negative impact on the support for existing mandates; reports by the special rapporteurs have not been always disseminated adequately.

The UN Secretariat has undertaken a series of reforms to address these problems, for instance by creating a quick response desk. The rapporteurs themselves take things in their own hands: they undertake more and more joint initiatives, sending urgent appeals and communications and coordinating field visits.

Challenged by the States

The main problems are of a political nature. Obviously many States bring an unfavourable attitude to the system. Experts increasingly find themselves targeted by brutal comments during the deliberations of the Commission. One special rapporteur was even subjected to legal prosecution in his own country, Malaysia; the case was dropped only after the International Court of Justice adopted a clear advisory opinion on the issue. A look at this year's thematic reports shows that many rapporteurs were denied access to countries that they intended to visit, even where the visit had been called for by a resolution of the UN Commission. A campaign initiated by the Quakers which aims at having U.N. member States extend an open invitation to all mechanisms of the UN Commission should receive more support.

Another strong limitation was introduced in 2000 during the last review of the Commission's mechanisms when the member States decided to limit to two terms the mandate of each individual expert. Last year a group of States even succeeded in imposing a change of mandate holder (on racism) by way of a resolution.

The challenge to the Commission's special procedures generally comes from states with bad human rights records. In their statements, these states no longer speak about prevention and promotion. The trend at the CHR over the last five years indicates that the current offensive against country resolutions and mandates only constitutes the first stage of another major attack which could soon affect the thematic procedures.

In the upcoming review of the Commission's mechanisms, it is crucial to recall that the aim of the process is to improve effectiveness and not to weaken the mechanisms. The Commission should primarily protect the special rapporteurs and NGOs cooperating with them. The High Commissioner must establish a special unit for the protection of those who cooperate with the special mechanisms.