20 Charter-Based Procedures: A) Human Rights Council Complaint Procedure

Prof. Gudmundur Eiriksson

Introduction

On 18 June 2007, the United Nations Human Rights Council adopted resolution 5/1 entitled “Institution-Building of the United Nations Human Rights Council” by which a new complaint procedure was established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances.

The complaint procedure addresses communications submitted by individuals, groups, or non-governmental organizations that claim to be victims of human rights violations or that have direct, reliable knowledge of such violations.

The complaint procedure replaced the so-called 1503 procedure which had been established in 1970 by the UN Commission on Human Rights and maintained by the replacement body, the UN Human Rights Council. The 1503 procedure allowed the Council to examine communications received from individuals and other private groups, with the aim to ‘address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances’. Even though this procedure allowed for individuals and non-governmental groups to file a complaint, no individual redress was possible under this procedure. Instead, the complaints aimed at identifying ‘a consistent pattern of gross and reliably attested violations’. When the Council received a communication under procedure 1503, it could adopt several responses. It could, inter alia, discontinue considering the situation when further consideration or action was not warranted, submit a request for additional information from the state concerned, appoint an independent expert to monitor the situation and report back to the Council, take the matter up under its public procedure or recommend to the Office of the High Commissioner for Human Rights (OHCHR) to provide technical cooperation, capacity-building assistance or advisory services to the State concerned.

In compliance with the mandate entrusted to it by the General Assembly, the Council decided on 30 June 2006 to establish the Working Group on the implementation of operative paragraph 6 of General Assembly resolution 60/251 (decision 1/104) to formulate concrete recommendations on the issue of reviewing, and when necessary, improving and rationalizing all mandates, mechanisms, functions and responsibilities of the former Commission on Human Rights, including the 1503 procedure.

The Working Group held three formal open-ended sessions from 13 to 24 November 2006, 5 to 16 February 2007 and 10 to 27 April 2007. The segment on the complaint procedure was chaired by the Permanent Representative of Switzerland, who was appointed by the President of the Council to facilitate the consultations on this mechanism. Discussions in the Working Group and various rounds of informal consultations were conducted on the basis of an initial and subsequently revised framework for discussions prepared by the Facilitator. Following the last session of the Working Group, a final proposal (A/HRC/5/15) was submitted by the Facilitator to the President, taking into account, to the greatest extent possible, the positions expressed during several months of consultations, with a view to facilitating the drafting of the section on the Complaint Procedure of a final document on institution building of the Council to be adopted in June 2007.

ECOSOC resolution 1503 (XLVIII) of 27 May 1970, as revised by resolution 2000/3 of 19 June 2000, served as a working basis for the new complaint procedure.

Learning outcomes:

• To understand the United Nations human rights complaint procedures.
• To explore the functioning of the working groups.
• To study the case of human rights in Eritrea.

Main features of the complaint procedure

The new procedure under resolution 5/1 maintains many of the features of the former 1503 procedure. For instance, it is confidential, with a view to enhancing cooperation with the State concerned. However, the new complaint procedure has been improved, where necessary, to ensure that the procedure be impartial, objective, efficient, victims-oriented and conducted in a timely manner.

Pursuant to paragraph 94 of resolution 5/1, the Chairperson of the Working Group on Communications (see below, 3), together with the Council Secretariat, undertakes an initial screening of communications based on the admissibility criteria set in paragraphs 85 to 88 of resolution 5/1. Manifestly ill-founded and anonymous communications are screened out. Communications not rejected in the initial screening are transmitted to the State concerned to obtain its views on the allegations of violations. Both the author of a communication and the State concerned are informed of the proceedings at each stage.

(a) Working groups

Two working groups – the Working Group on Communications and the Working Group on Situations (see below, 4) – are responsible, respectively, for examining written communications and bringing consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms to the attention of the Council.

(b) Criteria for a communication to be accepted for examination:

A communication related to a violation of human rights and fundamental freedoms is admissible, provided that:

It is not manifestly politically motivated and its object is consistent with the Charter of the United Nations, the Universal Declaration of Human Rights and other applicable instruments in the field of human rights law;

It gives a factual description of the alleged violations, including the rights which are alleged to be violated;

Its language is not abusive. However, such a communication may be considered if it meets the other criteria for admissibility after deletion of the abusive language;

It is submitted by a person or a group of persons claiming to be the victims of violations of human rights and fundamental freedoms, or by any person or group of persons, including non-governmental organizations, acting in good faith in accordance with the principles of human rights, not resorting to politically motivated stands contrary to the provisions of the Charter of the United Nations and claiming to have direct and reliable knowledge of the violations concerned. Nonetheless, reliably attested communications shall not be inadmissible solely because the knowledge of the individual authors is second-hand, provided that they are accompanied by clear evidence;

It is not exclusively based on reports disseminated by mass media;

It does not refer to a case that appears to reveal a consistent pattern of gross and reliably attested violations of human rights already being dealt with by a special procedure, a treaty body or other United Nations or similar regional complaints procedure in the field of human rights;

Domestic remedies have been exhausted, unless it appears that such remedies would be ineffective or unreasonably prolonged.

National human rights institutions, established and operating under the Principles Relating to the Status of National Institutions (the Paris Principles), in particular in regard to quasi-judicial competence, may serve as effective means of addressing individual human rights violations.

LIST OF SITUATIONS REFERRED TO THE HUMAN RIGHTS COUNCIL UNDER THE COMPLAINT PROCEDURE SINCE 2006

* The reports and resolutions of the Human Rights Council pertaining to the complaint procedure are confidential unless it is otherwise decided by the Council.

** The Human Rights Council considered these situations under the 1503 confidential procedure, which was subsequently replaced by the new complaint procedure in 2007, in accordance with its resolution 5/1.

3. Working Group on Communications

Mandate and membership

The Working Group on Communications (WGC) is designated by the Human Rights Council Advisory Committee from among its members for a period of three years (mandate renewable once). It consists of five independent and highly qualified experts and is geographically representative of the five regional groups. The Working Group meets twice a year for a period of five working days to assess the admissibility and the merits of a communication, including whether the communication alone or in combination with other communications, appears to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. All admissible communications and recommendations thereon are transmitted to the Working Group on Situations.

Sessions

In 2015, the Working Group on Communications held two sessions:

16 February to 20 February (16th session) 17 August to 21 August (17th session)

Decisions

All admissible communications are transmitted to the State concerned to obtain its view on the allegations of the violations. During its session, the Working Group on Communications may decide to:

dismiss a communication;

keep a communication under review and request the State concerned to provide further information within a reasonable time;

transmit the complaint to the Working Group on Situations.

In accordance with paragraph 106 of resolution 5/1, both the author of a communication and the State concerned are informed of the proceeding at each stage.

Working Group on Situations

Mandate and membership

The Working Group on Situations (WGS) comprises of five members appointed by the regional groups from among the States members of the Council for the period of one year (mandate renewable once). It meets twice a year for a period of five working days in order to examine the communications transferred to it by the Working Group on Communications, including the replies of States thereon, as well as the situations which the Council is already seized of under the complaint procedure. The Working Group on Situations, on the basis of the information and recommendations provided by the Working Group on Communications, presents the Council with a report on consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms and makes recommendations to the Council on the course of action to take.

Sessions

In 2015, the Working Group on Situations held two sessions:

26 to 30 January (15th session) 6 to 10 July (16th session)

Decisions

During its session, the Working Group on Situations may decide to:

dismiss a communication;

keep a communication under review and request the State concerned to provide further information within a reasonable time;

transmit the case to the Human Rights Council for further consideration.

In accordance with paragraph 106 of resolution 5/1, both the author of a communication and the State concerned are informed of the proceedings at each stage.

5. Review

Five years after its establishment, in 2011, the Human Rights Council had successfully completed a review of its work and functioning. This review process did not introduce any change in the working methods and scope of the Human Rights Council complaint procedure.

Following up the complaint procedure: the case of human rights in Eritrea

Following the decision of the Council to discontinue reviewing the human rights situation in Eritrea under its confidential complaints procedure it followed up, inter alia, in its resolution 26/24, by establishing the commission of inquiry on human rights in Eritrea for a period of one year with the mandate to investigate all alleged violations of human rights in Eritrea, as outlined by Sheila B. Keetharuth, the Special Rapporteur on the situation of human rights in Eritrea, in her reports. The President of the Human Rights Council appointed Mike Smith as chairperson of the commission, and Victor Dankwa and Sheila B. Keetharuth as its members.

The commission presented its report (A/HRC/29/42) to the Council at its 29th session in 2015. In its report, it found that systematic, widespread and gross human rights violations had been and were being committed in Eritrea under the authority of the Government and that some of these violations might constitute crimes against humanity.

In its resolution 29/18 of 2 July 2015, the Council, inter alia,

“Reiterates its numerous calls upon the Government of Eritrea, without delay: (a) To end its use of arbitrary detention of its citizens, and to end the use of torture or other cruel, inhumane and

degrading treatment or punishment; (b) To account for and release all political prisoners, including members of the G-15 reform group and journalists; (c) To account for those detained in the aftermath of the takeover on 21 January 2013 of the building housing the Ministry of Information, and to release them or to ensure that they are given a free and fair trial, with full respect for due process; (d) To ensure free and fair access to an independent judicial system for those detained, and to improve prison conditions, including by prohibiting the use of underground cells and shipping containers to hold prisoners, ending the use of secret detention centers and secret courts and the practice of incommunicado detention, allowing regular access to prisoners for relatives, legal advocates and other competent and legally authorized authorities and institutions, and to grant unhindered access to medical care; (e) To put an end to the system of indefinite national service by demobilizing the national service conscripts who have completed their mandatory 18 months of service, as announced by the Government of Eritrea, and by effectively ending the practice of engaging them in forced labour after such a period, to provide for conscientious objection to military service, and to end the compulsory practice of all children undertaking the final year of schooling in a military training camp;

(f) To end the practice of forcing citizens to participate in the militia; (g) To investigate promptly all allegations of extrajudicial killings, torture and other cruel, inhumane and degrading treatment or punishment rape and sexual abuse within the national service, and to bring perpetrators to justice;

(h) To end the practice of shooting at Eritrean citizens attempting to cross the border to flee the country; (i) To collaborate with human rights and humanitarian organizations and to allow them to operate in Eritrea without fear or intimidation in order to facilitate the full implementation of the Strategic Partnership Cooperation Framework for 2013-2016 signed by the Government of Eritrea and the United Nations on 28 January 2013, as well as other human rights-related projects; (j) To respect everyone’s right to freedom of expression and to freedom of thought, conscience and religion or belief, and the rights to freedom of peaceful assembly and of association; (k) To enhance further the promotion and protection of women’s rights, including by taking additional measures to combat harmful practices, such as child, early and forced marriage and female genital mutilation; (l) To implement the recommendations made during its second universal periodic review, to report on progress made and to cooperate fully with the Human Rights Council and the universal periodic review during its third cycle; (m) To end “guilt-by-association” policies that target family members of those who evade national service or seek to flee Eritrea; (n) To cooperate fully with the Office of the United Nations High Commissioner for Human Rights in accordance with its international human rights obligations by, inter alia, allowing unhindered access to a further mission by the Office as requested by the High Commissioner, the human rights treaty bodies and all mechanisms of the Human Rights Council, and to cooperate with all international and regional human rights mechanisms; (o) To provide the Office of the High Commissioner with all relevant information on the identity, safety, well-being and whereabouts of all detained persons and persons missing in action, including members of the G-15, journalists, those detained in the aftermath of takeover on 21 January 2013 of the building housing the Ministry of Information, and the 19 Djiboutian combatants;

(p) To allow the creation of political parties and to hold free, fair and transparent democratic elections at all levels, in accordance with international democratic standards; (q) To account for the modalities and the progress of the expert group appointed to work on a constitution for Eritrea, while implementing the Constitution of 1997 in the meantime, and to govern in accordance with the principles of the rule of law”.

Summary

The new United Nations Human Rights Council complaint procedures established to address consistent patterns and attested violations of human rights have proven to be fairly successful in the protection of human rights, as has been seen in the case of Eritrea.

The editors are indebted to the authors of the Human Rights Reference Handbook (5th edition, Reykjavik, 2010) for permission to use their work as a basis for various modules of this paper. The updating of information and final presentation is, however, our responsibility alone. (The publishers are the Icelandic Human Rights Centre, Reykjavik, Iceland and the University for Peace, Ciudad Colon, Costa Rica. The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.)

Reference

• Human Rights Reference Handbook (5th edition, Reykjavik, 2010) The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.