Making progress, preventing regress: Civil society at the Human Rights Council

The work of human rights defenders has perhaps never been more important nor more imperilled. As space closes at the national level – from China to Egypt, from Russia to Venezuela, and from Burundi to the Philippines – more and more defenders are seeking to use the international human rights system to expose violations, to push for accountability, to obtain justice and protection, and as a lever to increase pressure for national-level change.

The UN Human Rights Council in Geneva is a key mechanism for civil society in this regard, meeting three times per year in ordinary session, convening special sessions on crises and emergencies, and overseeing both the Universal Periodic Review and the work of Special Procedures (the UN’s independent human rights experts). This article provides a brief overview and analysis of civil society engagement and advocacy at the Council in 2017, while also offering some reflections on opportunities to strengthen the Council and make it more accessible, effective and protective for human rights defenders and victims of violations.

Human rights monitoring and accountability

For many civil society actors, the decision made by consensus at the 36^th session of the Council in September to establish an independent investigative body on the conflict in Yemen was the highlight of 2017, albeit a decision that should have been made at least two years earlier in line with calls by the UN High Commissioner for Human Rights. The body – comprising eminent international and regional experts – is mandated to investigate war crimes and other violations perpetrated by all parties to the conflict, both with a view to promoting accountability and to deterring future abuses. Such crimes include the bombing of civilians, torture and enforced disappearances, the use of landmines and cluster bombs, and the denial of access to food, water and humanitarian aid, among other gross deprivations. The adoption of the resolution followed sustained advocacy by a coalition of over 60 international, regional and Yemeni human rights NGOs, complemented by principled leadership by a group of States led by the Netherlands, together with Canada, Luxembourg, Belgium and Ireland. Significant in its own right, the adoption of the resolution also sent a strong message to the likes of Saudi Arabia that membership of the UN Human Rights Council is not a guarantee against scrutiny by that body and may even expose a country to heightened international attention.

While the Yemen resolution came at least two years too late, the Council did act more quickly, albeit not preventatively, in relation to gross human rights violations in Myanmar. It established a Fact Finding Mission at its 34^th session in March, extended the mandate of that Mission at its 36^th session in September, and then convened a special session on the situation in early December. The special session was significant, with the call for the session initiated by Bangladesh with strong support from other members of the Organisation of Islamic Cooperation – states better known for championing principles of sovereignty and non-interference than those of accountability and justice. It remains to be seen, however, whether this is a posture particular to the ethnic and religious dynamics of the situation. To date, the government of Myanmar has refused to cooperate with the Fact Finding Mission, demonstrating the need for such mechanisms to be complemented and supported by other actors with leverage, such as states and multinational enterprises with business, trade and investment interests in the country.

While action on Yemen and Myanmar were significant positive developments, the year was also marked by inaction on a range of other serious situations of concern, with the Council failing to address gross and systematic violations in States including China, Bahrain, Egypt, the Philippines, Turkey and Venezuela, to name just a few. This is despite the situations in those countries manifestly meeting the objective criteria for action committed to by a group of more than 50 States through joint statements led by Ireland (in 2016) and the Netherlands (in 2017). Lack of State leadership and political will – rather than any lack of information, capacity or tools – remain the greatest impediments to the Council’s effectiveness.

Civil society space and participation

Countering the global trend, civil society organisations partnered both to prevent regress and achieve some progress in protecting defenders and combating reprisals at the Council in 2017.

Against the backdrop of what the UN’s independent expert has described as an ‘unprecedented attack’ on defenders, in March the Council adopted a Norwegian-led consensus resolution extending the mandate of the Special Rapporteur. In November, the Third Committee of the UN General Assembly similarly adopted a resolution on defenders, although the consensus masked fractures, with China disassociating itself from a paragraph which referred to the work of defenders as ‘legitimate’. More positively, the General Assembly resolution was co-sponsored by States from all regions, including a number of African States – such as Cote d’Ivoire, Burkina Faso and Mali – that have not been traditional co-sponsors but have taken recent national law initiatives towards the protection of defenders.

Acts of intimidation and reprisals against human rights defenders, victims and others who seek to cooperate with the UN violate not only the rights of the individuals concerned, but amount to an assault on civil society and a rules-based international order. Seen this way, a September report by the UN Secretary-General which found evidence of ‘a strategy on the part of some States to prevent the activities of individuals providing information or otherwise cooperating with the United Nations’ is profoundly disturbing. The report highlighted that the incidence of reprisals is becoming ‘broader’, and the ‘means used increasingly blunt’. It contained cases of travel bans in Saudi Arabia and Bahrain; the freezing of the assets of NGOs in Egypt; intimidation of defenders in India and Myanmar; torture of defenders in Burundi and Egypt; arbitrary detention of defenders in the United Arab Emirates, Uzbekistan and China; and killing of defenders in Honduras, among others. Spurred by this report, together with the strategic advocacy of NGOs, the Council adopted a significant but contested resolution on reprisals in September – the first such resolution since 2013.

The resolution – led by core group comprising Ghana, Hungary, Ireland, Fiji and Uruguay – affirmed the right of all people to safe and unhindered access to and communication with international human rights bodies. It also mandated the Council to hold a dedicated dialogue to address acts of intimidation and reprisals and affirmed the particular responsibilities of the Council’s Members, President and Vice-Presidents to investigate and promote accountability for such acts. The holding of a dedicated dialogue within the Council will increase the visibility of acts of intimidation and reprisals, provide a platform to denounce and seek accountability for such acts, and increase the political cost for perpetrators

Prior to the vote on the resolution, 50 NGOs from all over the world called on Member States to reject 19 hostile amendments led by China, Egypt, India, Russia and Venezuela (perhaps not coincidentally, each of those States has been accused of perpetrating reprisals by the UN Secretary-General and UN experts in recent years). Despite these hostile efforts, the ultimate adoption of a strong, substantive resolution by an overwhelming majority sends a clear message that reprisals will not be tolerated and must end.

Making the Human Rights Council more accessible, effective and protective

The world needs a legitimate and influential high-level human rights body that is accessible, effective and protective for rights holders, defenders and victims.

In 2016, on the occasion of the Council’s tenth anniversary, a group of 20 international, regional and national NGOs coordinated by ISHR collaborated to develop a series of practical recommendations to strengthen the Council. 2017 saw a number of these recommendations taken up by progressive States, partly in response to a problematic US push to reform the Council, demonstrating the potential to craft opportunities from crises. Most significantly, at the 35^th session of the Council in June, the Netherlands worked in close partnership with ISHR and Human Rights Watch to devise a joint statement subsequently endorsed by almost 50 States from all regions outlining and committing to a series of 11 measures to enhance the Council’s legitimacy and effectiveness.

Among other measures is a commitment by signatory States to strive for competitive elections to the Council and support candidates based primarily on human rights-based considerations. States that are responsible for gross and systematic human rights violations, or that refuse to cooperate fully with the UN and uphold a rules-based international order should have no place at the Council. The ongoing Council membership of Burundi, together with the recent election of the Democratic Republic of Congo, demonstrate the imperative of operationalising this commitment.

States signatory to the Dutch-led joint statement also pledged to be guided by objective and human rights-based criteria (previously elaborated in an Irish-led joint statement in 2016) in determining whether and how the Council should respond to situations of concern. Such criteria include whether the UN’s human rights experts have recommended or called for action, the extent of the country’s cooperation with the UN human rights system, and the situation of human rights defenders and other civil society actors in the country. Such an approach to triggering action at the Council has been long advocated by NGOs and the onus is now on States to demonstrate principled leadership in applying the criteria. If a small State such as Iceland can lead a joint statement on extrajudicial killings in the Philippines, as it did at the Council’s 35^th session in June, then it behoves other States that profess a commitment to human rights and their defenders to show similar resolve. Civil society organisations have less and less patience for States that espouse a rhetorical commitment to thematic human rights issues – such as the protection of human rights defenders, freedom of expression or peaceful assembly – but that fail to take up those issues in concrete situations where perceived political, economic or other interests may be at stake.

Looking ahead – the role of civil society in building a Council fit for purpose

The Council approaches a critical juncture in 2018. While there is no formal review or reform process presently mandated, it is clear that the Council will have to strengthen its approach to prevention and implementation, become more streamlined and efficient in its working methods, and find ways to enhance State cooperation and adherence to membership standards if it is to be the credible and responsive human rights body the world needs.

For States that share a vision of the Council as a vital mechanism for monitoring and exposing violations, promoting accountability for perpetrators, and achieving access to remedy and justice for victims, civil society must be an indispensable partner in strengthening efforts. A reform agenda motivated primarily by a desire for efficiency or friendly dialogue, or devised exclusively by international actors, will not be fit for purpose and will not respond to the real and pressing needs of rights holders, defenders and victims on the ground.

Phil Lynch is Director of the International Service for Human Rights (www.ishr.ch). Follow him on Twitter @PhilALynch.