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Part 4 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.
Topic 4: UN political mechanisms for protecting minorities
Section 1: The Human Rights Council
The Human Rights Council (HRC) is the UN’s highest-ranking forum on human rights. Because its members are governments, it is considered a political body and regularly meets in Geneva to discuss and pass resolutions on a variety of human rights issues. It is comprised of 47 member states; other states participate as observers, meaning they can address meetings but can’t vote on resolutions. The HRC is a high-ranking, influential body whose strength lies in the fact that it can raise issues pertaining to any country in the world. However, “Debates on critical human rights issues are frequently overshadowed by political considerations and arguments.”
Section 2: The Independent Expert on Minority Issues and other Special Procedures
According to MRG, ‘Special Procedures’ is the name given to individuals (and groups of individuals) who are appointed by the Human Rights Council (HRC) to examine a particular human rights issue or the situation of human rights in a particular country. This section specifically focuses on thematic special procedures, which can address issues related to that theme in any country in the world, regardless of whether or not the relevant human rights treaties have been ratified. However, the recommendations made by special procedures are not legally binding on governments.
What do Special Procedures do?
All special procedures undertake research related to the theme of their mandate using information from governments, inter-governmental organizations, UN agencies, National Human Rights Institutions (NHRIs), and NGOs. They submit reports to the HRC, and many also report to the UN General Assembly. How is this relevant to minorities? “Many of the thematic special procedures have addressed issues of concern to minorities in their thematic reports. For example, in the last year the Special Rapporteur on racism addressed the link between racism and conflict, including the role of hate speech in triggering violence and the Special Rapporteur on Violence Against Women highlighted the need for reparations for minority women systematically subjected to violence such as forced sterilization.”
2. Country visits
Many mandates authorize the mandate-holders to visit countries to undertake in-depth investigations into the situation as it relates to the theme in that country. They submit a report and recommendations on the visit to the HRC.
The HRC has authorized some special procedures to intervene with governments on behalf of individuals or groups of individuals.
- Urgent appeals
Mandate-holders can send urgent appeals (called Communications) to governments requesting the government to take action or provide information about a particular case.
The mandate-holder reports to the HRC on the cases they take up and the responses they get.
In 2005, the HRC created the post of Independent Expert on Minority Issues (IEMI), mandated to promote the implementation of the UN Declaration on Minorities (UNDM) and identify best practices relating to minorities. The current IEMI is Ms. Rita Izsák from Hungary. She has undertaken research on a number of pressing issues for minorities, including poverty reduction and the Millennium Development Goals, denial of citizenship, and public participation. Additionally, Izsák has visited and reported on nine countries around the world.
Section 3: The Forum on Minority Issues
The Forum on Minority Issues was established by the HRC in 2007 and is the only UN body dedicated to minorities. It is a subsidiary body of the HRC. The Forum provides a place of discussion between members of minorities, governments, international agencies, NGOs, and the IEMI, who reports to the HRC on recommendations from the Forum on the given theme of each session. The Forum focuses on one theme selected by the IEMI each session; thus far, it has addressed minorities and the right to education in 2008, minorities and effective political participation in 2009, and inorities and effective participation in economic life in 2010.
Section 4: The Universal Periodic Review
The Universal Periodic Review (UPR) is an examination over a four-year period of the human rights record of all states by the member and observer states of the Human Rights Council (HRC). The review is based on a report submitted by the state under review, a document summarizing all UN documents relating to that state collected by the UPR Secretariat, and a second document summarizing all information submitted by NGOs to the secretariat. The HRC devised a schedule for the UPR to ensure all 192 states would be examined between 2008 and 2011. Per MRG,
The UPR Process
- A troika (group of three states) is selected to facilitate the review.
- States submit written questions via the troika for the state under review.
- A three-hour meeting of the UPR working group is held.
- In the meeting, the state under review makes an initial presentation. Then any other state may ask questions or make recommendations. The state under review responds to questions (known as interactive dialogue).
- The troika compiles a summary of the interactive dialogue and all the recommendations into one document.
- The UPR working group adopts this document a few days later. The state under review may indicate then whether it accepts the recommendation. The state may request time to consider certain recommendations.
Final stage (including NGO involvement)
At the HRC session following the UPR working group, the outcome document of each state under review is discussed by the HRC plenary.
Here, the state must indicate whether it accepts or rejects the recommendations it previously deferred. If it rejects any recommendations, it should explain why. This is also an opportunity for the state to inform the HRC what measures it has taken and to make public commitments for future measures.
At this stage, NGOs have their only opportunity to make statements during the UPR process. The final outcome document is then adopted by the HRC.
After all states have been reviewed, the process will start again. The next review should focus on whether the state under review has implemented the recommendations it agreed to at the previous review.
Part 3 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.
Topic 3: UN legal instruments protecting minorities
Section 1: Introduction to treaties
A treaty is a legal agreement between states, drafted by them. Within the UN, when the draft is completed, the General Assembly approves or adopts the text. The latter happens through a vote or by consensus. Each state must then decide whether to become a party to the treaty. If a state decides to become a party to the treaty, it must sign the treaty, showing its intention to become legally bound in the future. The state then ratifies the treaty, confirming it will be legally bound by it. This can also be achieved through accession (ratification without a prior signature) or succession, meaning a state expresses its willingness to be bound by international agreements that were entered into by a predecessor state or states. After a certain number of states have ratified, acceded or succeeded to a treaty, the treaty ‘enters into force,’ whereby it becomes legally effective for those states.
When a state ratifies, accedes to, or succeeds to a treaty, it can modify some of the provisions by making a reservation–a statement that changes, or even negates, the provision in an article or part of an article of a treaty. MRG defines an article as “an item in a treaty that lays out an obligation of the states that are bound by the treaty.” Reservations are allowed, except if the treaty expressly forbids it, or if the reservation is ‘incompatible with the object and purpose of the treaty.’ States parties to a treaty can enter a declaration, often a definition or a clarification of what the state believes the treaty provision to mean. MRG points out here that there are two uses of the term ‘Declaration’ in the context of international law:
- The main use of the term is as an international agreement between states that is not legally binding. For example, the Universal Declaration of Human Rights (UDHR) and the UN Declaration on the Rights of Minorities (UNDM).
- As seen here, a declaration can also be a statement of clarification about a provision of a treaty.
Treaties have both strengths and weaknesses. Their strength lies in the fact that unlike declarations, treaties are legally binding. Moreover, when a state ratifies an international human rights treaty, it is compelled to adjust domestic legislation in order to comply with treaty legislation. On the flip side, a treaty is only legally binding on the states which have ratified it. Reservations and declarations to human rights treaties can also constitute a major problem.
Section 2: UN treaties and minorities
There are eight main UN treaties protecting a range of human rights:
- International Covenant on Civil and Political Rights (ICCPR)
- Article 27 of the ICCPR specifically refers to minorities. It is the main legally binding provision on minorities in human rights law. It provides that persons belonging to minorities ‘shall not be denied’ the right ‘to enjoy their own culture, to profess and practice their own religion, or to use their own language.’
- International Covenant on Economic, Social and Cultural Rights (ICESCR)
- International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
- International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
- Convention Against Torture (CAT)
- Convention on the Rights of the Child (CRC)
- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)
- International Convention on the Rights of Persons with Disabilities (CRPD)
Another important treaty relating to minority rights is the International Convention on the Prevention and Punishment of the Crime of Genocide. Article I states, “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” Article II defines genocide.
In order to address the issue of governments complying with treaty provisions, the UN has put in place human rights monitoring committees, so-called treaty monitoring bodies made up of human rights experts from different states. These experts are nominated by their governments, elected by states party to the treaties for fixed, renewable four-year terms, and independent, i.e., not representative of their state’s interests.
A treaty monitoring body has been created for each human rights treaty:
|Human Rights Treaty||Treaty Monitoring Body|
|International Covenant on Civil and Political Rights (ICCPR)||Human Rights Committee (CCPR)|
|International Covenant on Economic, Social and Cultural Rights (ICESCR)||Committee on Economic, Social and Cultural Rights (CESCR)|
|International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)||Committee on the Elimination of Racial Discrimination (CERD)|
|Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)||Committee on the Elimination of Discrimination against Women (CEDAW)|
|Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT)||Committee Against Torture (CAT)|
|Convention on the Rights of the Child (CRC)||Committee on the Rights of the Child (CRC)|
|International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)||Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW)|
|Convention on the Rights of Persons with Disabilities (CRPD)||Committee on the Right of Persons with Disabilities (CRPD)|
Treaty-monitoring bodies perform four main functions: reviewing state reports, interpreting the treaty, considering individual complaints, and thematic/general discussions.
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Last Monday evening, Sept. 24, the Women’s Media Center and Physicians for Human Rights presented a panel discussion titled “Is It Possible to Stop Rape in Conflict? A Conversation with Nobel Laureates and Activists at the Forefront of the International Campaign to Stop Rape & Gender Violence in Conflict.”
Before the panel itself got under way, author and activist Robin Morgan offered some comments. She began by saying that women live in an alternate reality of normalized violence. She mentioned the International Criminal Tribunal for Rwanda’s Akayesu decision, which ruled for the first time that rape, if committed with the intention to destroy a group, could be considered a component of genocide. It also marked the first time an international court punished sexual violence in a civil war. Throughout the world, especially in conflict-prone areas, women are subjected to female genital mutilation, untenable living situations as internally displaced persons and refugees, sexual slavery and prostitution, unpaid labor, and suffer disproportionately from illiteracy. She concluded by pointing out the direct correlation between violence in the family and violence in the state. For more on this topic, Morgan recommended reading Sex and World Peace, by Valerie M. Hudson, Bonnie Ballif-Spanvill, Mary Caprioli, and Chad F. Emmett.
The next speaker was Susannah Sirkin, deputy director at Physicians for Human Rights, who focused on the Democratic Republic of Congo (DRC). She discussed the case of Bosco Ntaganda, who despite being indicted by the International Criminal Court continues to travel freely between the DRC and Rwanda, which has the effect of encouraging rape and other grave crimes. On the topic of medical treatment for rape survivors, Sirkin said that while clinics exist, their cupboards are bare. In addition to ending impunity, she also noted the need for survivors to tell their stories.
Sirkin then acted as translator for Dr. Denis Mukwege, founder and medical director of Panzi Hospital in Bukavu, located in eastern DRC. Dr. Mukwege said he has treated 40,000 women who are victims of rape and has performed 15,000 surgeries to repair women’s bodies damaged by rape and sexual violence. Compounding the problems of silence and lack of capacity surrounding these issues, Dr. Mukwege said that rape in DRC is not just a weapon, but a strategy of war—well planned, well organized, and systematic. Women and girls of all ages are victims and mass rapes are methodically carried out. There are instances in which public rapes are used to demonstrate power and destroy genitalia; one cannot go to the press as with a mutilated hand or ear. Consequences of rape in the DRC include a massive displacement of the population, as well as a demographic impact, since young women often develop obstetric fistulas that make it impossible for them to reproduce. There’s also the risk of contracting and spreading HIV/AIDS and other sexually transmitted diseases. These are consequences that are transmitted to the next generation and lead to the destruction of the social fabric and economy.
After Dr. Mukwege, Patricia Guerrero spoke. She is director of the League of Displaced Women in Colombia, where displaced women live undercover because there are no public policies in place to address their plight. When conflicts come to an end and a peace process starts, Guerrero noted that violence against women often increases. Other social problems adversely affecting women in Colombia are the development and control of natural resources and the war on drugs. Because of the stigma these women face, they often speak in code.
The next-to-last panelist was Nobel Peace laureate Shirin Ebadi of Iran. Ebadi said she believes sexualized violence can be ended by addressing impunity through the ICC, although it is a problem that the ICC has no jurisdiction over half of the countries in the world because they are not state parties to the Rome Statute. She noted that while it is true the UN Security Council has the authority to refer cases to the ICC, as it did with Sudan, there is also the fact problem of the abuse of veto power within the Security Council. She cited Syria as an example, where crimes against humanity are being committed but China prevents the Security Council from taking action. Ebadi pointed out that children born from rape and what their destiny will be is often forgotten. In traditional cultures, as she called them, such children are hated and cast aside. So protecting victims has to include protecting these children. Punishing the perpetrator is the ideal but culture can dictate that the victim be killed or have other rights violated. During the Iran–Iraq war, she said, a vast amount of rapes were committed in southern Iran, which is tribal. Twenty years later, those who contested the 2009 election results were arrested and raped in prison. To bring an end to such atrocities, Ebadi suggested that a good starting point is naming and shaming those who commit them.
The final speaker was Jody Williams, who received the Nobel Peace Prize in 1997 for her achievements with the International Campaign to Ban Landmines. Williams noted that although a campaign to ban landmines is obviously very different from a campaign to stop rape in conflict, they both speak to the power of the collective, of civil society. She also talked a bit about her experiences working with the women’s human rights group MADRE.
The evening concluded with a Q&A session led by the event’s moderator, Lauren Wolfe. The event’s main takeaway was that rape in conflict isn’t something that happens “over there.” Rather, it is a continuum of the violence that happens in homes and between states. One of the contributing factors is the glorification of war, and the root cause is patriarchy, meaning a cultural mindset, not just the male gender. Because of the shame attached to it, victims of rape must overcome the obstacle of silence. For their part, men who aren’t responsible for these heinous acts also need to speak out. Political leaders must address this issue as they do unemployment or the economy. And in order to achieve true justice, women must participate in peace negotiations.
UN Guidance for Mediators Addressing Conflict-Related Sexual Violence in Ceasefire and Peace Agreements
The Missing Peace Symposium 2012: Sexual Violence in Conflict and Post-Conflict Settings