United Nations Commission on Human Rights
United Nations Commission on Human Rights
The United Nations Commission on Human Rights is the first, and remains the only, body operating within the framework of an international organization that is devoted exclusively to promoting universal respect for human rights throughout the world.
The Commission was envisaged as part of the United Nations (UN) when it was founded after World War II. The first words of the UN Charter state:
We the peoples of the United Nations are determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person. . . (Preamble, Sect. 1 and 2)
It was within this context, following the atrocities of a war that dramatically illustrated what would come to be known as crimes of genocide and crimes against humanity, that the UN Commission on Human Rights was created. It was a time when reaffirming the fundamental values of dignity and respect for human life was vital.
Origin and Creation
The Commission on Human Rights benefits from the fact that it is the only "technical commission" mandated by the UN Charter (Article 68), signed in San Francisco on June 26, 1945. It is thus a statutory body of the UN and had been planned for from the organization's inception. It was formally created on February 16, 1946, by the Economic and Social Council (ECOSOC), one of the principal bodies of the UN. Inclusion of the Commission in the UN Charter did not occur without considerable discussion at the San Francisco conference, which was responsible for drafting the Charter.
In fact, the four "sponsoring powers" at the San Francisco conference (China, the United States, the United Kingdom, and the former Soviet Union), whose role was essential in preparing the Charter, viewed the creation of a human rights commission with apprehension. They recognized the risk of its limiting or interfering with national sovereignty in a highly sensitive area, one where the state was traditionally tied to its prerogatives. It was only at the eleventh hour, just prior to the expiration of the allotted deadline (May 4, 1945), that the four countries filed joint amendments, one of which provided for a commission for "the development of human rights." The principal terms of its creation may be found in Article 68 of the UN Charter. It is important to note, however, that the efforts of nongovernmental organizations (NGOs) alone ensured the commission's creation at the San Francisco conference. In particular, it was the representatives of private organizations recognized by the U.S. States delegation who, through their perseverance, succeeded in influencing member states to include in the UN's projected amendments a provision for a special commission on human rights, even though it was initially agreed that the Charter itself would not specifically mention a technical commission.
This episode illustrates the essential role that NGOs and civil society can play in advancing human rights and promoting their respect throughout the world, by their intervention on an international scale. Such activist groups have grown in strength and diversity throughout the decades of the Commission's existence, but the Commission itself has been inconsistent in its recognition of these participants, and often it has attempted to limit their involvement.
Status and Functions
Prior to the final establishment of the Commission (in 1946), debate turned to the subject of its composition, namely, whether it would be made up of independent experts or representatives of the member states. The latter proposal was eventually adopted, with the Commission officially composed of representatives from eighteen member states. Its composition has been expanded several times over the years and as of 2004 there are fifty-three members, designated by the ECOSOC on the basis of regional geographic representation. Some believe a Commission of independent experts known for their competence and impartiality would ensure a more objective approach to human rights and, in particular, the question of violations; others see the direct involvement of national governments in the Commission's work as increasing the effectiveness of its proposals and ensuring the application of its recommendations. The risk of the first approach, a truly independent Commission, is that it would become isolated, without any grasp of the realities and changes that primarily stem from existing governments. In the second approach, that adopted by the UN, states serve as both judges and parties (since they are the principal entities implicated in any violations), and the Commission risks finding its work impeded whenever the interests of a powerful state or group of states are involved.
In hindsight one may posit that in its actions to the present, the Commission might have been better able to fulfill its human rights mission if its activities had been based on the work of independent bodies and experts, such as its Sub-Commission on the Promotion and Protection of Human Rights and working groups, or its special rapporteurs (individuals responsible for examining specific violations or human rights situations within a country). This would not, of course, eliminate the specter of negative pressure from some states, especially when the Commission is being pressured from within for various reasons associated with an international situation. It remains the case, however, that arrangements could be made to limit such negative effects and prevent states that demonstrate little respect for human rights from sitting on the Commission or presiding during a session. To achieve this end, certain criteria have been proposed, such as a state's ratification of the major human rights conventions or a state's permanent agreement to allow special rapporteurs on its territory.
The Commission's mandate and responsibilities as originally defined in its statutes (ECOSOC Resolution 5(I) of February 16, 1946, and Resolution 9(II) of June 21, 1946, both of which are still applicable) are extensive and highly diverse. The Commission, which meets in an annual session, is responsible for presenting proposals, recommendations, and reports related to an international declaration of human rights and other declarations and conventions in this area; the protection of minorities; and the abolition of distinctions based on race, sex, language, or religion. It is also responsible for research activities and formulates recommendations when requested by ECOSOC. In addition, the Commission can look into "any other problem involving human rights" that is not otherwise stipulated, which opens up a nearly unlimited field of activity. In short, one may view the Commission as a specialized body within the UN responsible for implementing the fundamental terms of the UN Charter designed to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction" (Article 55), and basing its activities on commitments formally made by member states for that purpose (Article 56). In the decades following its somewhat tentative initial phase, the Commission made increasingly greater use of the mechanisms granted at its inception, primarily for investigating human rights violations around the world. The Commission has evolved through three successive phases: a standard-setting phase, a promotional phase, and a protectionist phase. Here the first and last of those phases will be addressed.
Standard-Setting Phase: Development of the Fundamental Instruments of Human Rights
Although the Charter clearly indicates that one of the principal objectives of the UN is to encourage respect for human rights, it does not define the substance of those rights or the specific steps for ensuring their application. During the first years of its existence (1947–1954), the Commission overcame this void by devoting itself almost exclusively to drafting the instruments that would define those rights and ensure their international adoption: the Universal Declaration of Human Rights (adopted December 10, 1948), and the two international covenants, one on civil and political rights, the other on economic, social, and cultural rights (both were adopted in 1966).
The Universal Declaration is the "foundational" instrument; it establishes basic principles and defines rights by specifying their scope. Although the crime of genocide and crimes against humanity are not expressly mentioned in the text, the Declaration contains terms that can be directly related to such crimes. In its preamble the Declaration states that "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind," and the Declaration itself is advanced as "a common standard of achievement for all peoples and all nations to the end that every individual and every organ of society shall strive to promote respect for these rights." As for the recognition of those principles and rights, the Declaration incorporates the following: the principle of equality in dignity and rights (Article 1); the prohibition of any discrimination, especially through race, color, sex, language, religion, political or any other opinion, national or social origin, property, birth, or any other status (Article 2); the right to life, liberty, and personal security (Article 3); and the prohibition of slavery and torture (Articles 4 and 5).
Corresponding clauses have been included in the International Covenant on Civil and Political Rights later drafted by the Commission, which identifies a specific mechanism for inspection and is legally binding on the states that have ratified it.
Coincident with the Universal Declaration, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948. This marked an important step in the definition and identification of genocide and the pursuit and punishment of its perpetrators. The Commission on Human Rights, preoccupied with the preparation of the Universal Declaration, did not participate significantly in drafting the Genocide Convention. This task was entrusted to a special committee—the Ad Hoc Committee on Genocide—created by ECOSOC.
The Commission did however contribute some twenty years later to the preparation of the draft Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. In 1965, in light of the requirement for legal action scheduled to begin at that time, as mandated by the laws of certain states, the Commission began studying the legal procedures that could be used to establish the nonapplicability of statutory limitations for such crimes. It proposed that a specific convention be formulated after the study ended; the General Assembly finally adopted such a convention in 1968. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity stipulates the crimes that are not subject to statutory limitations, identifies the individuals responsible for those crimes (in particular, any government officials), and indicates the commitments and steps states must make and follow in matters of extradition and statutory limitations. In the years subsequent to the Convention's adoption, the Commission regularly studied the "question of punishing war criminals and individuals guilty of crimes against humanity" and the necessity of international cooperation for such purposes. Concerning this last point, the Commission examined a set of draft principles adopted by the General Assembly in 1973 entitled Principles of International Co-operation in the Detection, Arrest, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity.
The Commission's work on standard-setting continued beyond this initial period as it drafted other special instruments (declarations and conventions): primarily the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984), and the Convention on the Rights of the Child (1989). The Convention Against Torture, in particular, should be considered in light of acts that may be classified as crimes against humanity, for it contains a precise definition of the term torture and also institutes a specific control mechanism through its Committee Against Torture (composed of experts and empowered to examine documents or complaints related to violations of the Convention).
Protectionist Phase: Examination of Human Rights Violations
During the first two decades of its existence, the Commission did not follow up on the many complaints of human rights violations it had received since the UN's founding, claiming a lack of jurisdiction even though its mandate in no way prohibited investigation. Its primary focus was standard-setting, studies on specific rights, and promotional efforts with various states (e.g., technical cooperation, consulting services, a system of periodic reports).
Beginning in the late 1960s, under pressure from countries newly admitted to the UN following their independence, the Commission began to concretely address violations. It instituted procedures for examining documents and attempted to identify "situations of flagrant and systematic human rights violations" (on the basis of ECOSOC Resolution 1235 (XLII) of June 6, 1967, and Resolution 1503 (XLVIII) of May 27, 1970). Simultaneously, the Commission created special groups of experts responsible for investigating a region or country. The first, formed in 1967, was the ad hoc group of experts to investigate human rights in South Africa; it initially investigated torture and the improper treatment of prisoners arrested by the police in the Republic of South Africa. New ad hoc groups of experts were later created to investigate alleged human rights violations in other countries or territories, but since the 1980s the Commission has frequently assigned the study of a human rights situation in a specific country to a single expert known as a "special rapporteur."
In the same period the Commission also regularly appointed special rapporteurs with so called thematic mandates (in other words, mandates not restricted to a specific country), who became responsible for examining a specific type of violation that could be found throughout the world (such as extrajudicial, summary, or arbitrary execution; forced or involuntary disappearance; torture). In their publicly available reports submitted annually to the Commission, special rapporteurs identify, and establish the facts of, various cases and situations, which in certain circumstances involve crimes against humanity and/or genocide.
During the past few decades, based on reports and other sources of information at its disposal, the Commission has examined and identified situations that revealed the existence of such crimes. It has adopted resolutions condemning those acts, demanding that the responsible parties be judged and that all available steps be taken to eliminate such actions and prevent their reoccurrence in the future.
Situations That Constitute Crimes of Genocide and Crimes Against Humanity
During a single ten-year period, from 1990 through 2000, the Commission examined two large-scale occurrences of human rights violations involving the crime of genocide and crimes against humanity in the former Yugoslavia and in Rwanda. This led to protective actions in both situations. The extreme gravity of the events that transpired and the urgency of confronting them prompted the Commission to convene special sessions, the first held since its inception.
Serious human rights violations in Bosnia and Herzegovina, Croatia, and the Federal Republic of Yugoslavia (Serbia and Montenegro) resulted in the first of the Commission's responses. In 1992 it held its first two special sessions to discuss these issues (August 13–14 and November 30–December 1), organized at the request of the required majority of its members. During the first session a special rapporteur was appointed and a new special session convened to examine the rapporteur's reports. On this basis, in its Resolution 1992/S-2/1 of December 1, 1992, the Commission categorically condemned the ethnic cleansing ongoing in Bosnia and Herzegovina, acknowledging that Serbian leaders in the territories under their control in Bosnia and Herzegovina, the Yugoslav army, and the political leaders of the Serb Republic bore primary responsibility for the practice. The Commission demanded that ethnic cleansing be discontinued immediately. The Resolution also forcefully restated the following: Anyone perpetrating or authorizing such crimes against humanity is individually responsible for those violations and the international community will spare no effort to bring them to justice.
Additionally, all states were invited to examine the extent to which the acts committed in Bosnia and Herzegovina and Croatia constituted genocide as defined by the Convention on the Prevention and Punishment of the Crime of Genocide. On this point, on December 18, 1992, the General Assembly itself declared that "the abhorrent policy of ethnic cleansing was a form of genocide" (General Assembly Resolution 47/121); the Commission would reaffirm the term genocide in its later resolutions.
During the years that followed the special rapporteur––whose mandate was regularly renewed––submitted new reports to the Commission, which, in response, adopted resolutions at each of its sessions, denouncing and condemning the substantiated crimes, and demanding that any violations be discontinued and those responsible be brought to justice. After 1993 the situation in Kosovo also deteriorated, especially in terms of ethnic cleansing, and this led to grave concerns on the Commission's part. Simultaneously, the systematic use of rape as a weapon of war and an instrument of ethnic cleansing, particularly in Bosnia and Herzegovina, was forcefully denounced and qualified as a "war crime" by the Commission. On May 25, 1993, the Security Council, in its Resolution 827, created the International Criminal Tribunal for the Former Yugoslavia (ICTY). The Commission requested that all the states cooperate and support this body.
In line with the general agreement for peace in Bosnia and Herzegovina (the Dayton Accord of November 21, 1995, signed in Paris on December 14), the Commission demanded an end to human rights violations in the Federal Republic of Yugoslavia (Serbia and Montenegro), in Bosnia and Herzegovina, and in Croatia. It also recommended that steps be taken to assist in the return of refugees and displaced persons, that the states involved provide information on the fate of those who had disappeared, and that an effort be made to promote democratic institutions. The special rapporteur, with an extended mandate, was asked to carry out these missions in the three states, especially in Kosovo. At each of its following sessions, the Commission reviewed the findings of the rapporteur and adopted resolutions concerning the human rights situation in those countries. On April 13, 1999, in the face of continued violations and the massacres carried out against the Kosovars after Serb authorities had revoked their autonomy, the Commission adopted a special resolution devoted exclusively to the human rights situation in Kosovo (Resolution 1999/2). This resolution strongly condemned the widespread and systematic practice of ethnic cleansing, demanded the immediate discontinuation of all repressive actions that might worsen the situation, and asked the international community and the ICTY "to bring to justice the perpetrators of international war crimes and crimes against humanity, in particular those responsible for acts of ethnic cleansing and identity elimination in Kosovo."
Following the retreat of Serb forces from Kosovo on June 10, 1999, new developments in the region (primarily the establishment of the UN Interim Administration Mission and the International Security Force in Kosovo) led to the Commission's modifying its approach. However, it continued to regularly examine, at each of its sessions, the human rights situation in the countries in question on the basis of reports prepared by the special rapporteur and by the "special representative" of the Commission who was appointed in 2001.
During the 1990s the Commission also examined the situation in Rwanda, and its investigation revealed that acts of genocide had been committed there, with serious and extensive human rights violations occurring after April 1994. This led to the Commission's convening a third special session on May 24 and 25. In its Resolution (S-3/1), the Commission "believing that genocidal acts may have occurred in Rwanda," condemned all violations of international humanitarian law and human rights committed in the country and asked all parties to put an end to the situation at once. It further affirmed that any individual who commits or authorizes violations of human rights or international humanitarian law is personally responsible and must account for his or her actions in a court of law. To further its inquiry, the Commission appointed a special rapporteur to investigate the human rights situation in Rwanda by traveling there. It also asked that given the urgency of the situation, all existing mechanisms available to the Commission be utilized: primarily the special rapporteur on extrajudicial, summary, or arbitrary executions; the special rapporteur on torture; the Secretary General's special representative on internally displaced persons; the working group on forced or involuntary disappearances; and the working group on arbitrary detention; as well as the monitoring organizations instituted by international human rights conventions. In particular, the special rapporteur becames responsible for gathering information on "acts which may constitute breaches of international humanitarian law and crimes against humanity, including acts of genocide in Rwanda."
In his report dated June 28, 1994, the special rapporteur issued the following findings: "The charges are threefold: genocide through the massacre of the Tutsi, political assassinations of a number of Hutu and various violations of human rights." On the basis of information appearing in this report and another prepared by an expert commission created on July 1, 1994, by the Security Council, the Human Rights Commission, during its next regular session held in the spring of 1995, strongly condemned the acts of genocide, the violations of international humanitarian law, and all human rights violations committed during the conflict in Rwanda following the tragic events of April 6, 1994 (attacks on the aircraft which cost the lives of the president of Rwanda and the president of Burundi). After reaffirming the personal responsibility of all individuals who commit such crimes and other serious violations, and the need to bring them to justice, the Commission asked that all states cooperate fully with the International Criminal Tribunal for Rwanda (ICTR), which the Security Council created through Resolution 955 on November 8, 1994.
During the sessions that followed, the Commission continued to examine the human rights situation in Rwanda, paying particular attention to the information supplied by the special rapporteur, whose mandate was regularly renewed. In its successive resolutions, the commission repeatedly condemned the crime of genocide, crimes against humanity, and all other human rights violations in Rwanda, insisting on the individual responsibility and prosecution of all their perpetrators, and the full cooperation of all member states with the ICTR.
The Commission has also begun to address the situation of survivors of genocide and massacres, in particular the large number of traumatized children and female victims of rape and sexual abuse. In this context it has emphasized the importance of human rights observers and the Human Rights Field Operation in Rwanda, initiated by the UN High Commissioner on Human Rights in cooperation with the Rwandan government. The field operation is responsible for investigating violations of human rights and humanitarian law, including acts of genocide and crimes against humanity, and monitoring the evolving human rights situation by preventing the occurrence of new violations. In 1997 the special rapporteur was succeeded by a "special representative," authorized by the Commission to recommend ways to improve the human rights situation and provide technical assistance. The special representative's mandate ended in 2001, concluding the Commission's specific examination of the human rights situation in Rwanda.
In the face of two serious situations involving massive and systematic violations of human rights, in the former Yugoslavia and Rwanda, the Commission responded decisively and quickly: convening for the first time in special session and utilizing special rapporteurs who were able to investigate violations already committed or in progress, and whose mandate lasted for several years. The Commission also made use of monitoring committees to track the application of human rights conventions and the existing "resources" available to special rapporteurs and working groups responsible for examining such issues as extrajudicial or summary executions, torture, arbitrary detention, and involuntary disappearances. The Commission's activities and decisions have also been coordinated with those of other competent UN agencies, especially the Security Council and the two international ad hoc tribunals that were created to bring those responsible for the acts in question to trial.
In this context the Commission has contributed to fact-finding and been particularly helpful inidentifying the acts that constitute crimes of genocide or crimes against humanity. Nonetheless, it is unfortunate that the Commission was unable to intervene earlier to prevent such situations or, at least, to limit the violations, whether in Rwanda or the former Yugoslavia. However, "early warning" procedures are now in effect that will allow the Commission to remain better informed about potentially serious human rights violations, although its ability to respond in concrete ways is still too limited. The prevention of violations remains a critical issue; it can be strengthened by the presence of human rights observers in the field before a situation deteriorates significantly and becomes totally uncontrollable.
Struggle against Impunity
Starting in the 1990s, the Commission began to regularly examine the issue of impunity, which, while intended to ensure that those guilty of violations do not escape justice, is also part of a system of prevention and dissuasion. In 1993 it formed a subcommission to study the impunity of human rights violators. Previously, several special rapporteurs and working groups of the Commission had raised the question within the context of their respective mandates (e.g., extrajudicial execution, torture, involuntary disappearance). Determining that the practice was increasingly widespread and that it encouraged violations and served as a fundamental obstacle to the respect of human rights, the Commission, through various resolutions, insisted the phenomenon be countered. It asked member states to take the steps necessary to prevent impunity while supplying possibly relevant information on it. For the Commission, denouncing the violations, holding perpetrators individually responsible for their acts, and obtaining justice for the victims are essential to promoting human rights and preventing future violations. Similarly, releasing information about the suffering of the victims and establishing the truth about the perpetrators of human rights violations are vital for the rehabilitation of victims and any subsequent reconciliation.
As part of its study, the subcommission drafted a document entitled, "Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity" (divided into three sections: the right to know, the right to justice, and the right to reparation). It was sent to the Commission in 1998 and then distributed to various states. While emphasizing the importance of the ICTY and ICTR, the Commission also strongly insisted on the need to establish a permanent criminal court as an important component of the struggle against impunity. When the Rome Statute of the International Criminal Court (ICC) was adopted on July 17, 1998, the Commission encouraged member states to join and collaborate. Similarly, in its resolutions, it has regularly stressed the importance of the Convention on the Preparation and Punishment of the Crime of Genocide by asking those states that have not yet ratified it to do so.
In its resolutions the Commission has also incorporated the mechanisms established by certain states in which serious violations have occurred, primarily investigative commissions and truth and reconciliation commissions, and it has additionally encouraged other states in a similar situation to institute their own mechanisms for redress. In its 2003 session the Commission asked that an independent study be prepared and recommendations provided on the most effective practices to help states combat all aspects of impunity.
The role of the United Nations Commission on Human Rights in preventing genocide and crimes against humanity falls within the scope of its overall activities and is one of the many functions it has developed since its creation: the drafting of norms and principles, the use of special studies and technical assistance to promote human rights, the use of special procedures and field missions to help provide protection. The complementary nature of, and interaction among, these different approaches and methods highlight the specific contributions of the Commission and its huge potential. It is this potential that should be further explored to encourage prevention and, in particular, those activities that will discourage the most serious human rights violations, namely genocide and crimes against humanity.
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