Quick summary
- The 36th regular session of the Human Rights Council (HRC36) was held from Monday 11th September to Friday 29th September 2017.
- On 11th September, the UN High Commissioner for Human Rights, H.E. Mr Zeid Ra’ad Al- Hussein, presented an oral update on the global human rights situation.
- A number of high level dignitaries delivered statements during the session, including inter alia, H.E. Mr Sheikh Mohammed Bin Abdulrahman bin Jassim Al-Thani, Minister of Foreign Affairs of Qatar; H.E. Mr Jorge Arreaza Montserrat, Minister of Foreign Affairs of the Bolivarian Republic of Venezuela; H.E. Mr Timo Soini, Minister of Foreign Affairs of Finland; Lord Ahmad of Wimbledon, State Minister for the Commonwealth and the United Nations of the United Kingdom; H.E. Mr Le Luong Minh, Secretary-General of ASEAN; and H.E. Mr Faustin Archange Touadera, President of the Central African Republic.
- Four panel discussions were held during the session.
- More than 65 reports under the Council’s various agenda items were considered.
- More than 250 side-events were held by States and/or NGOs.
- The outcome reports of the UPR Working Group of the following 14 States were adopted: Bahrain, Ecuador, Tunisia, Morocco, Indonesia, Finland, the United Kingdom, India, Brazil, Philippines, Algeria, Poland, the Netherlands, and South Africa.
- Seven new Special Procedures mandate-holders were appointed to the following mandates: Special Rapporteur on the elimination of discrimination against persons affected by leprosy and their family members; Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance; a member of the Working Group of Experts on People of African Descent from Western European and other States, and members each from the African States, the Asia-Pacific States, the Eastern European States and the Western European and other States for the Working Group on the issue of discrimination against women in law and in practice.
- 30 written and/or oral amendments were put forward by States during the consideration of texts and resolutions. Three were adopted by a vote; 25 were rejected by a vote; and two were withdrawn.
- The Council mandated the establishment of a Group of Eminent International and Regional experts on Yemen and a new open-ended Working Group for the elaboration of an international regulatory framework for private military and security companies.
- 34 texts were considered by the Council: 32 resolutions, one decision and one President’s Statement. Of these, 21 were adopted by consensus (61.8%), and 13 by a recorded vote (38.2%)
- 25 of the texts adopted by the Council (73.5%) had Programme Budget Implications (PBI) and 16 required new appropriations not included in previous Programme Budgets. The total costs of the newly mandated activities amounted to a total of $7,461,500, at the time of writing.
Briefing by the High Commissioner for Human Rights
At the opening of HRC36, the UN High Commissioner for Human Rights, H.E. Mr Zeid Ra’ad Al Hussein, presented his regular update to the Council, focusing on the crucial role of governments in safeguarding human rights. He reminded the Council that member States need to uphold the highest human rights standards, in order to maintain the credibility of the Council. In this regard, he remarked on a lack of consistency between what States are saying and doing in the field of human rights at international level, and their actions at domestic level. He called this an ‘internal-external gap.’
The High Commissioner also raised the issue of reprisals against human rights defenders and NGOs who collaborate with UN human rights mechanisms; an drew attention to the on-going issue of selectivity in terms of country situations addressed by the Council. Against this backdrop, he encouraged Council members to consider the exclusion from the body of those who fail to comply with the membership standards set down in GA resolution 60/251.
In the second part of his speech, the High Commissioner addressed human rights issues in 40 States. He expressed dismay over the human rights situations in: Myanmar, the Democratic Peoples’ Republic of Korea, Yemen, the Syrian Arab Republic, Venezuela, the Central African Republic, South Sudan, and Burundi. He urged the Council to establish international investigations into the situations in Venezuela and Yemen.
In his update, the High Commissioner also mentioned salient thematic human rights issues including, inter alia, migration, corruption, and violent extremism. He further remarked on increased restrictions on civil society space and persecutions against the most vulnerable groups, including human rights defenders, lawyers and journalists in over 15 countries.
He also noted positive steps taken in Sudan, Ethiopia, Congo and China, including strengthened with the OHCHR, and improved national legislation and respect for rule of law. The High Commissioner went on to honour the people of the Greek island of Tilos for their strong example of humanity and integration in welcoming refugees.
In conclusion, H.E. Mr Zeid Ra’ad Al Hussein reflected on the past three years of his four-year mandate: he noted that the world had grown ‘darker and [more] dangerous’ and concluded that ‘human rights principles are the only way to avoid global war and profound misery and deprivation’ (link to statement).
In the interactive dialogue with the High Commissioner that followed, Norway delivered an important joint statement, on behalf of 69 States, on the operationalization of the Council’s prevention mandate under paragraph 5f of GA resolution 60/251 (link to statement). See ‘Conclusions and analysis’ below for more information.
Figure 1. Country-specific situations mentioned during HRC36 opening session
Figure 2. Top 20 thematic issues mentioned during HRC36 opening session
High level dignitaries
In his address to the Council, H.E. Mr Le Luong Minh, Secretary-General of ASEAN, focused on the human rights of a number of vulnerable groups, including: women, migrant workers, and victims of trafficking. He reiterated ASEAN’s commitment to raising awareness of human rights among the populations of its member States through education, research, and dissemination of information (link to statement).
H.E. Mr Timo Soini, Minister of Foreign Affairs of Finland, referencing the 100th anniversary of Finland’s independence, recalling that: ‘a poor country became a successful society through an early commitment to human rights, universal education, social cohesion, and dialogue.’ In that regard, he emphasised the importance of and interlinkages between the three pillars of the UN. He also highlighted the Council’s ‘key role in taking early preventative action’ and that ‘respect for human rights prevents conflicts’. Finally, Mr Timo Soini noted that Finland would be a candidate for Council Membership in the period 2022-2024 (link to statement).
In his statement to the Council, the State Minister for the Commonwealth and the UN of the United Kingdom, Lord Ahmad of Wimbledon, argued that eradicating modern slavery is one of the greatest human rights challenges facing the world today, stating that ‘it exists in every country represented in this room, and in every business supply chain.’ Moreover, he condemned all instances of persecution of individuals for their faith or belief, emphasising that ‘protection and promotion of freedom of religion or belief is fundamental in tackling the root causes of extremism and building resilient societies.’ Finally, he highlighted the plight of human rights defenders, remarking that an estimated 127 environmental human rights defenders have been killed in 2017 so far (link to statement).
H.E. Ms Carmen Almendras, Vice Minister of Institutional and Consular Management of the Plurinational State of Bolivia, noted that ‘the Council has demonstrated that it is possible to harmonise efforts among States in order for prioritise the rights of discriminated peoples, for example with the Declaration on the Rights of Indigenous Peoples’ (link to statement).
H.E. Mr Bessolé Réné Bagoro, Minister of Justice of Burkina Faso, expressed his concern over the number of violent conflicts around the world, which give rise to grave human rights violations. He also noted that the effective promotion and protection of human rights means effective cooperation with human rights mechanisms, and that his country has implemented a number of policies based on recommendations from international human rights mechanisms (link to statement).
In his address, H.E. Mr Faustin Archange Touadéra, President of the Central African Republic reflected upon the human rights challenges facing his country. He emphasized that the ‘Central African Republic is convinced of the fact that’ the ‘promotion and protection of human rights is the basis for sustainable peace and key for prevention’. He also informed the Council of the creation of a national human rights institution (NHRI), which will be operational in October of this year (link to statement).
Panel Discussions
A total of four panel discussions were held during HRC36. The panels focused on the following topics (click for OHCHR meeting summaries):
- Biennial panel discussion on unilateral coercive measures and human rights
- Annual discussion on the integration of a gender perspective throughout the work of the Human Rights Council and that of its mechanisms
- Annual half-day panel discussion on the rights of indigenous peoples
- Panel discussion on the impact and intersecting forms of discrimination and violence in the context of racism, racial discrimination, xenophobia and related intolerance on the full enjoyment of all human rights by women and girls
Trust fund to support the participation of LDCs and SIDS
The Trust Fund for the participation of LDCs and SIDS in the work of the Council, set up in 2012, funded the participation of nine (seven female and two male) government officials at HRC36, from Angola, Belize, Cambodia, Guinea Bissau, Malawi, Mali, the Marshall Islands, Mauritania, and Samoa. For all of them, it was the first time they participated in a HRC session.
Commissions of Inquiry, Fact-Finding Missions and Investigations
Commission of Inquiry on Burundi
During an interactive dialogue at HRC36, Mr Fatsah Ouguergouz, Chair of the Commission of Inquiry on Burundi (established under resolution 33/24), presented the final report of the Commission. The report is based on more than 500 interviews with Burundians, living in Burundi and abroad.
Mr Ouguergouz started by giving an overview of the Commission’s findings concerning the human rights situation in the country. Based on information collected, he explained that there are ‘reasonable grounds to believe that serious human rights violations and abuses have been committed in Burundi since 2015,’ some of which persist in 2017. Further, he said that the Commission has reasonable grounds to believe that these violations and abuses – which include arbitrary arrests and detention, torture, arbitrary executions, enforced disappearances, and sexual violence, including rape – constitute crimes against humanity. Given the high levels of impunity in Burundi, the Commission recommended that the International Criminal Court ‘open an investigation into the existence of possible crimes against humanity committed in Burundi since April 2015.’
The Council decided, at HRC36, to extend the mandate of the Commission of Inquiry on Burundi for a period of one year, and requested ‘the Commission to present an oral briefing to the Human Rights Council at its thirty-seventh and thirty-eighth sessions and a final report during an interactive dialogue at its thirty-ninth session and at the seventy-third session of the General Assembly.’
Independent International Commission of Inquiry on the Syrian Arabic Republic
During an interactive dialogue at HRC36, the Independent International Commission of Inquiry on the Syrian Arabic Republic presented an oral update on the situation in the country, covering the events from March 2017 to the present.
Mr Paulo Sergio Pinheiro, Chairperson of the Commission, said as part of his introductory remarks that ‘it has been the Commission’s goal to give voice to the victims, to bear witness to their plight, and to document rigorously violations and abuses perpetrated against them.’
Presenting the COI’s latest report, he stated that serious violations of human rights and humanitarian law had continued to occur across Syria. Civilians continue to be deliberately attacked by ‘all warring parties, including pro-government forces, anti-government groups, terrorist organisations and their loyal affiliates.’
Mr Pinheiro then explained that the Commission insists that ‘there is no military solution to the conflict’ and, on behalf of the Commission of Inquiry on Syria, he called on the international community ‘to focus squarely on the Syrian people,’ stressing the need for a political solution rather than a military solution. He said that such a ‘solution must encompass justice for the victims,’ including their right to the truth.
Independent International Fact-Finding Mission on Myanmar
Mr Marzuki Darusman, Chair of the Fact-Finding Mission on Myanmar established by Council resolution 34/22, presented an oral update of the Mission’s work during an interactive dialogue.
Mr Darusman stated that the reports on human rights violations that have been received by the Fact-Finding Mission (FFM) on Myanmar include mass killings, excessive use of force, torture and ill-treatment, sexual and gender-based violence, and landmine-killings. He also affirmed that it is clear to the Commission that a humanitarian crisis is underway.
Concerning prevention, Mr Darusman pointed out that the Council needs to recognise the existing dehumanising propaganda against the Rohingya as a danger sign, because ‘hate speech often precedes and accompanies major atrocities.’ Turning to the issue of cooperation, he explained that the Commission had expressed its wish to develop a cooperative relationship with the government and the wider State, including by visiting the country. He took the opportunity to reiterate this request.
Mr Darusman concluded expressing concern about the Commission’s ability to verify the facts and to produce a strong report, he appealed to the Council to consider extending the Mission’s mandate by six months, until September 2018. Based on this request, at the end of HRC36, the Council decided to extend the mandate of the Fact-Finding Mission for a period of one year. The final report of this Mission is now expected to be delivered at the 39th session of the Council.
Universal Periodic Review
Adoption of the UPR Working Group outcome reports
The Council adopted the UPR outcome reports of Bahrain, Ecuador, Tunisia, Morocco, Indonesia, Finland, the United Kingdom, India, Brazil, Philippines, Algeria, Poland, the Netherlands, and South Africa. A total of 3,067 recommendations were made to these 14 States, out of which 2,208 were accepted in whole or in part, and 859 were noted or rejected.
General debate under item 6
During the general debate under item 6, held from 22nd to 25th September, Portugal delivered a statement on behalf of the Group of Friends on National Implementation, Reporting, and Follow-up (NMIRFs), highlighting the positive role such mechanisms can play in advancing human rights on the ground. In the statement, the States noted that ‘the success of the UPR will be measured by the effective implementation of recommendations. This should be set as a priority for the 3rd cycle.’ In that regard, they noted the need to: aim for more focused recommendations; make better use of advance questions; and take full advantage of exchanges of good practices. The Group of Friends underlined the particular role that NMIRFs can play in boosting domestic implementation and highlighted several positive national experiences in that regard. Therefore, they encouraged governments to establish and strengthen voluntary NMIRFs throughout the new UPR cycle.
Tunisia, speaking on behalf of the African Group, looked forward to further enhancing the efficiency of the mechanism by ensuring the quality of recommendations and keeping the numbers manageable. This would help ensure the implementation by receiving States.
During the same debate, Estonia, on behalf of the European Union (EU), noted that having entered the 3rd cycle of the UPR, effective implementation of accepted recommendations must be a key priority for all States. Therefore, the EU encouraged States under review to strengthen their focus on implementation of previously accepted recommendations in their national reports.
Samoa, speaking on behalf of the eight beneficiary delegates and fellows of the LDCs and SIDS Trust Fund, noted that the Trust Fund had provided them with an opportunity to participate and speak at the Council, irrespective of their small size and relative lack of resources.
In its statement, the Commonwealth highlighted their work with States to implement accepted UPR recommendations by focusing on building and strengthening national institutions, and ‘developing the capacities of parliaments to enhance their role in the implementation process.’ In this regard, a regional best practice platform will be convened in Grenada in 2018.
Special Procedures
Interactive Dialogues
18 mandate-holders (14 thematic, four country-specific) presented annual reports to the Council (all of which are available here). During the 12 Interactive Dialogues (six ‘clustered’ and six individual), 62 States delivered statements (either individually or jointly), of which 18% were from the African Group, 28% from Asian Pacific Group, 10% from Eastern European Group, 12% from Latin American and Caribbean Group, 28% from Western European and Other Groups, and 4% from other States (namely the State of Palestine and the Holy See).
Appointment of new mandate-holders
Seven new mandate-holders were appointed during the session, to fill positions for three existing mandates, and one new mandate (the Special Rapporteur on the elimination of discrimination against persons affected by leprosy and their family member). On the final day of the session, the following mandate-holders were appointed:
- Ms E. Tendayi Achiume, from Zambia, was appointed as the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance;
- Ms Alice Cruz, from Portugal, was appointed as Special Rapporteur on the elimination of discrimination against persons affected by leprosy and their family members;
- Ms Marie-Evelyne Petrus, from France, was appointed as the member from the Western European and other States of the Working Group of Experts on People of African Descent;
- Ms Meskerem Techane, from Ethiopia, was appointed as member from African States of the Working Group on the issue of discrimination against women in law and in practice;
- Ms Melissa Upreti, from Nepal, was appointed as member from Asia-Pacific States of the Working Group on the issue of discrimination against women in law and in practice;
- Ms Ivana Radačić, from Croatia, was appointed as the member from Eastern European States of the Working Group on the issue of discrimination against women in law and in practice;
- Ms Elizabeth Broderick, from Australia, was appointed as member from Western European and other States of the Working Group on the issue of discrimination against women in law and in practice.
To inform the appointments, the Consultative Group, made up of representatives of Croatia, Honduras, Malaysia, Mauritius, and Norway sent its recommendations to the President of the Council on 10th August 2017. Following ‘broad consultations with States and other relevant stakeholders,’ the President followed the recommendations for all of the seven mandates in his proposal to the Council, sent via letter on 18th September 2017.
There are now 55 Special Procedures mandates (44 thematic, 11 country-specific), and 79 mandate-holders (58% male, 42% female).
General Debate under item 5 & item 10
At the opening of general debate under item 5, Assistant Secretary-General for Human Rights Andrew Gilmour presented the Secretary-General report on reprisals, which documented cases of ‘grave concern’ in 29 States, an all-time high. The Assistant Secretary-General highlighted the alarming increase of reprisals worldwide and emphasised that his findings showed only the tip of the iceberg. He remarked that reprisals should be seen as a warning sign, as human rights defenders are ‘the canary in the coalmine, bravely singing until they are silenced by this toxic backlash against people, rights and dignity’.
Brazil, on behalf a group of States, used its Item 5 statement to express concern over the ‘diminished appetite for dialogue and engagement’ at the Council. They called on the Council to increase political space for dialogue ‘either through formal or informal approaches within the confines of the IB Package,’ and to address in a more comprehensive manner the situations and issues that fall within its mandate. Moreover, Brazil emphasised the need for the Council to ‘be aware of its prevention mandate’, a task that ‘does not require an overhaul of its IB Package but might require an honest assessment and improvement of our institution culture.’
Estonia, on behalf of the European Union and nine other States, delivered a joint statement under Item 5 reiterating their support to the ‘indispensable’ role of the High Commissioner and his Office in ‘ensur[ing] impartial and objective scrutiny of human rights situations in all parts of the world.’ They expressed their concern with the increasing number of States refusing to open their territory to the UN human rights mechanisms and the OHCHR, and refusal to issue a standing invitation to the Special Procedures. Lastly, they expressed their serious concern about the findings of Assistant Secretary-General. This concern was also echoed by other delegations under 10, including inter alia, Belgium, Germany, Hungary, Ireland, Norway (on behalf of a group of four countries), and the United States.
Morocco, on behalf of the Francophone countries, used its item 10 statement to reiterate ‘its strong commitment to an increased focus to a preventative dimension in human rights, particularly via strengthening the attention given to item 10.’ Moreover, they said that their vision for a full implementation of item 10 also ‘stems from the conviction that technical assistance and capacity building contributes to the full realisation of the SDGs.’
In its statement under item 10, India echoed other delegations, including Belize (on behalf of eight SIDS/LDCs), Denmark, Malaysia and Samoa, by calling on the international community to continue its support the participation and engagement of SIDS and LDCs to ensure that ‘the crucial voices of these States are heard in this room.’
HRC elections
Two informal events held during the session offered a platform for reflection on the upcoming Council elections, scheduled to take place on 16th October in New York.
The first event, held on the first day of the session and sponsored by Amnesty International, ISHR, and the Permanent Missions of Uruguay, Albania, and Canada, provided an opportunity for around 13 of the candidate States (out of 16) to present their candidatures, including their pledges and commitments for membership, and for civil society to engage in a dialogue with them.
The second event, hosted by the Permanent Mission of Norway and the URG on 19th September, marked the launch of the yourHRC.org Guide to the 2017 Human Rights Council Elections. Find more information on: yourHRC.com.
Both events aimed to enhance transparency and accountability in the Council elections, as well as to promote a higher observance of the standards set by General Assembly resolution 60/251 concerning Council membership.
Resolutions
The 36th session of the Council concluded with the adoption of 32 resolutions, one decision, and one President’s Statement. This represents a significant increase of 9.7% from the number of texts (31) adopted at the 33rd session in September 2016.
Further, when combined with the 42 texts adopted at the 34th session and 37 texts adopted at the 35th session, the total number of texts adopted in 2017 is 113. This represents a 7.6% increase from the overall number of texts adopted in 2016 (105) and is the highest number of texts adopted by the Council in a single working year.
Around 38% of the texts at HRC36 were adopted by a recorded vote.
24 (70.6%) of the texts adopted by the Council were thematic in nature, while 10 (29.4%) dealt with country-specific situations. Of the latter texts, three addressed human rights violations under agenda item 4 (human rights situations that require the Council’s attention), one did so under item 2 (annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General) and six sought to protect human rights through technical assistance and capacity-building (item 10).
25 of the texts adopted by the Council (71.4%) had Programme Budget Implications (PBI), requiring appropriations of $7,461,500 not previously covered by the UN regular budget, at the time of writing.
In total, all of the resolutions adopted at HRC36 will result in four panels, two inter-sessional meeting, and 12 OHCHR reports, 12 existing mandates (Special Procedures and one COI) were also renewed. Further, the Council also mandated the establishment of a Group of eminent international and regional experts on Yemen and a new open-ended Working Group for the elaboration of an international regulatory framework for private military and security companies.
Resolutions* *listed in order of L numbers
Decisions and President’s Statements |
|||||
| Agenda Item | Decision/President’s Statement | Sponsors | PBI? | Extra-Budgetary Appropriations | Adoption |
| 4 | Extension of the mandate of the independent international fact-finding mission on Myanmar | Estonia (on behalf of the European Union) | ✓ | $2,269,600 | Consensus |
| 1 | Reports of the Advisory Committee | President of the Human Rights Council | ✗ | – | Consensus |
Analysis and conclusions
The 36th session of the Human Rights Council continued a worrying trend of recent years, which has seen more and more resolutions negotiated and adopted with, apparently, fewer and fewer meaningful consultations between States. This has a number of negative consequences for the Council, including: the tabling – session-on-session – of unsustainable numbers of resolutions and other texts (with HRC36 completed, 2017 has seen the highest ever number of adopted Council texts – 113); an increase in the length of texts and decrease in quality (due to insufficient scrutiny and negotiation); the creation, through those resolutions, of unsustainable numbers of panels, reports, and mechanisms – each placing yet further pressure on the body’s programme of work; and a continued growth in the number of voted resolutions (38% of resolutions at HRC36, up from 29% at HRC33, and the highest proportion in the Council’s history) and voted amendments (30 in total – roughly the same as a year ago at HRC33, and a significant increase on the number of voted amendments at HRC34 and HRC35).
The moderately successful 2015 reforms instigated by the 9th President of the Council, H.E. Ambassador Joachim Rücker of Germany, designed to make the Council more efficient and thus, in the longer-term, more effective; have now gone into full reverse. States do now appear to understand the significance of this problem, especially after the Director-General of UNOG made clear that the UN’s conference services are unwilling to service more Council meetings, yet they also appear unable to muster the political will or discipline to act on that understanding. This apparent paradox was again in evidence during HRC36, where States repeatedly complained about the Council’s workload yet rejected a number of technical solutions proposed by the Bureau.
The continued deterioration in the Council’s methods of work, and the concurrent inability of States to agree on important, but largely technical remedial reforms, give weight to the argument that the Council should conduct a reflection or review of its operation over the next three years, as a key ‘Geneva’ contribution to the next General Assembly review of the Council due to start in 2021. This might perhaps be initiated by the next President of the Council.
Thematic issues
Among numerous important thematic human rights issues discussed and negotiated at HRC36, three stand out in particular.
First, a group of main sponsors including Switzerland, Benin, Belgium, Mexico, Mongolia, Costa Rica and France, tabled a draft resolution on ‘the question of the death penalty,’ which in addition to strong new wording condemning the use of the death penalty for ‘crimes’ such as blasphemy, adultery, apostasy and same sex relations, proposed that the next biennial high-level panel discussion (to be held at HRC40) on the death penalty, should address the questions of non-discrimination and equality.
In common with votes on previous resolutions on the question of the death penalty, but with an added edge due to the new language mentioned above, a number of Council Members spoke out against the draft, arguing that States retain the right, under international human rights law, to use capital punishment, and thus the Council’s continued focus on this issue of domestic law violated their sovereign rights as States.
For example, Russia presented four amendments to the draft resolution, and explained that even though Russia itself is in the process of abolishing the death penalty, such decisions should be taken by each State, not by the United Nations using ‘one-sided’ interpretations of international law. This position was supported by others, including Egypt and Saudi Arabia, with amendments proposed, for example, to operative paragraph 1 that would: ‘recognise that the application of a moratorium on death penalty sentences, abolishing the death penalty sentence, or retaining it, should be a decision based on domestic debates at the national level.’
In the end, this and other amendments were voted down by the Council, (though one amendment, L.41, came very close to being adopted – with 18 in favour, 19 against, 9 abstentions). The resolution as a whole was then adopted with 27 in favour, 13 against and 7 abstentions.
Second, at HRC36, a core group of Fiji, Ghana, Hungary, Ireland and Uruguay, tabled a follow-up to resolution 24/24 (2013), on ‘cooperation with the UN, its representatives and mechanisms in the field of human rights.’ This is more commonly known as the issue of ‘reprisals’ – i.e. reprisals by States against human rights defenders and others who have provided information to / cooperated with the UN human rights system.
Ever since the adoption of Council resolution 24/24, and the subsequent ‘suspension’ of that adoption by the General Assembly, the subject of reprisals (as well as other related thematic issues, such as ‘human rights defenders’ and ‘civil society space’) has become one of the more divisive issues at the Council. The new resolution sought to consolidate progress on this issue since the ‘suspension’ of the adoption of resolution 24/24 at the GA in 2013, especially the designation of UN Assistant Secretary-General, Andrew Gilmour, as the senior official asked to lead efforts within the UN system to address intimidation and reprisals; by asking him to present the annual report of Secretary-General on reprisals to the Council and for it to serve as the basis of a Council interactive dialogue.
Unsurprisingly, the long-standing opposition of members of the Like Minded Group (LMG) of States to the approach taken by the sponsors of the initiative on reprisals continued into HRC36. These countries argued, broadly, that while they reject any form of reprisal and agree that any substantiated case of such should be addressed by the UN, they nevertheless believe the current system is abused by individuals making ‘fabricated allegations’ and serves to turn the Council away from providing a forum for dialogue and cooperation, and towards an international court. Countries also opposed the idea of linking allegations of reprisals with States’ membership of the Council, and questioned how OHCHR assessed the veracity or otherwise of claims of reprisals.
Different LMG States tabled 19 amendments to the draft resolution on reprisals (one amendment was tabled by the Russian Federation, and the other 18 by a core-group consisting of China, India, Russian Federation, and Venezuela). During voting, 15 were rejected, and three were adopted, while one was withdrawn. The three adopted amendments focused on: the importance of information on reprisals being ‘credible and reliable,’ and ‘thoroughly checked and corroborated;’ concerned States having the opportunity to respond to those allegations; and that the overall process should emphasise ‘cooperation and dialogue,’ rather than levelling accusations at States. However, key amendments that would have, for example, deleted reference to a role for the Council President and Bureau, deleted reference to the role of the Assistant Secretary-General, and deleted the call for an interactive dialogue on the Secretary-General’s report, were all rejected.
In the vote on the text as a whole, the resolution was adopted, as amended, with 28 in favour, zero against, and 19 abstentions.
A final thematic development of note, at HRC36, was a joint statement delivered by Norway, on behalf of 69 States, on the operationalization of the Council’s prevention mandate (as contained in paragraph 5f of GA resolution 60/251). The UN Secretary-General has identified the strengthening of the UN’s prevention capabilities, as a priority for his term in Office. The joint statement, building on discussions during the fourth Glion Human Rights Dialogue in May 2017, sought to provide an initial vision of the operational role of the Human Rights Council within the Secretary-General’s wider prevention agenda. The statement noted that paragraph 5f incorporates two parts: first, the prevention of violations at root cause level through building domestic human rights resilience and capacity; and second, bringing improvements to the Council’s capacity to respond promptly to human rights emergencies.
Country specific situations
HRC36 saw considerable debate and disagreement over the Council’s approach to two human rights situations in particular: in Burundi and in Yemen.
Regarding Burundi, just before the tabling deadline (and with only one open informal consultation – after tabling), the ‘African Group’ (minus Botswana and Rwanda) tabled a draft resolution in competition to an already-tabled EU draft (the EU being the traditional main sponsor of resolutions on Burundi). Western States later claimed that the African Group text was only circulated (in French only) to other delegations on the Tuesday before voting (i.e. less than 48 hours before action would be taken on the draft). The end result was a situation in which the Council was obliged to take action on two different draft resolutions on, ostensibly, the same subject – with significant negative implications for the credibility of the body.
In the end, action was first taken on the ‘African Group’ (minus Botswana and Rwanda) draft (because it was tabled under agenda item 2, while the EU draft was tabled under item 4 – an essentially procedural ploy). The African draft requested the UN High Commissioner for Human Rights to appoint a team of three experts with a two-part mandate: ‘to engage with the Burundian authorities and all other stakeholders, in particular United Nations agencies and the African Union in order to collect and preserve information, to determine the facts and circumstances in accordance with international standards and practices, in cooperation with the Government of Burundi, and to forward to the judicial authorities of Burundi [this] information in order to establish the truth and to ensure that the perpetrators of deplorable crimes are all accountable to the judicial authorities of Burundi,’ (so essentially support domestic accountability processes); and ‘to make recommendations for technical assistance and capacity-building and ways to improve the situation of human rights in the country with a view to providing support to the country in fulfilling its human rights obligations and to ensure accountability and fight against impunity,’ (so help build domestic human rights capacity). In the end, the EU called for a vote on the draft resolution, which was eventually adopted with 23 in favour, 14 against, and 9 abstentions. Botswana abstained during the vote, and Rwanda did not vote.
The Council then took action on the EU draft, which basically renewed the mandate of the Commission of Inquiry on the situation in Burundi. (The original tabled EU draft had also contained important substantive paragraphs, but these were removed – and the title of the resolution changed – once it became clear that the African Group was proposing its own draft resolution). The draft EU-led resolution was eventually adopted with 22 votes in favour, 11 against and 14 abstentions. Among those voting in favour of the text were two African States: Botswana and Rwanda.
That the Council ended by adopting two different resolutions on the situation in Burundi seriously undermines the credibility of the body, as does the manner in which the ‘African Group’ (minus Botswana and Rwanda) text was put forward (supposedly by a UN regional group, but with two of its members in open opposition; and with minimal consultations 1-2 days before voting). The politicisation of the Council’s efforts to address the situation in Burundi at HRC36 also highlighted, once again, the negative consequences of electing to the Council (via blank slate votes at the GA) States that are on the body’s agenda for alleged serious human rights violations; and the problematic of trying to ‘pigeonhole’ complex and multifaceted human rights situations into ‘neat and clean’ Council agenda items. To be properly addressed, all such situations require a tailored international response including both short to medium-term accountability mechanisms and longer-term capacity-building efforts.
It is also worth noting that the adoption of duplicate resolutions, each catalysing different follow-up actions, also exacerbates the Council’s already over-heavy agenda. For example, because of the two resolutions adopted at HRC36 on the situation in Burundi, there will now be a total of six debates on that situation in 2018.
Regarding Yemen, the situation was somewhat reversed: i.e. the Council began by considering two draft resolutions but ended up taking action on only one.
A first draft was put forward by Egypt on behalf of the Arab Group (with Saudi Arabia particularly instrumental), and, as with previous resolutions on the situation in Yemen, focused on the provision of technical assistance and capacity building under item 10 of the Council’s agenda. This draft rejected the High Commissioner’s repeated call for an independent investigation into human rights violations in Yemen.
The second early draft was put forward by the Netherlands and Canada, and embraced the High Commissioner’s call for and independent investigative body, arguing that this call could no longer be ignored. According to the main sponsors, a credible investigation was necessary to establish the facts and circumstances surrounding on-going violations – accountability being necessary in order to reach reconciliation. This draft was tabled under item 2.
In the end, just before voting, the two sides reached an agreement to merge the two draft texts, with the following core characteristics:
- First, the title of the text would be amended to be ‘Human rights, technical assistance and capacity-building in Yemen’ (originally it had been ‘Technical assistance and capacity building for Yemen in the field of human rights’ and the Dutch / Canadian text had been entitled ‘Situation of human rights in Yemen.’
- Second, the final draft included the establishment of an investigative body with an international dimension, but (based on Arab Group demands) did not refer to this body as a Commission of Inquiry (COI). The final name of the mechanisms is: group of eminent international and regional experts.
- Third, the final agreed draft called on the High Commissioner to continue to provide capacity building and technical assistance, and legal advice and support, to enable the National Commission of Inquiry to complete its investigatory work into allegations of violations and abuses committed by all parties in Yemen, in line with international standards, in accordance with the Presidential Decree No. (50) of 23 August 2017.
This combined text was finally presented by the Arab Group under item 10, and was adopted by consensus.
The new group of eminent international and regional experts, to be established and its members appointed by the High Commissioner, is mandated to ‘monitor and report on the situation […] and carry out a comprehensive examination of all alleged violations and abuses of international human rights and other appropriate and applicable fields of international law committed by all parties to the conflict since September 2014, including possible gender dimensions of such violations, and to establish the facts and circumstances surrounding the alleged violations and abuses and, where possible, to identify those responsible.’ The new group is also requested to make general recommendations on improving respect for human rights, and to provide guidance on access to justice, accountability, reconciliation and healing, as appropriate; and to engage with Yemeni authorities and all stakeholders, in particular relevant UN agencies, the field presence of OHCHR in Yemen, authorities of the Gulf States, and the League of Arab States, with a view to exchanging information and providing support for national, regional and international efforts to promote accountability for human rights violations and abuses in Yemen.
A final country-related development of note at HRC36, was the US decision to put forward an oral amendment to the Japan-led resolution on Advisory Services and Technical Assistance to Cambodia, through which the Council would decide to extend the mandate of the Special Rapporteur on the situation in Cambodia for two years, and consider reports from the Secretary-General on the role and achievements of OHCHR in Cambodia. At the time of voting, Japan made an oral revision to its own draft resolution, reducing slightly the frequency of reporting to the Council (probably based on negotiations with the concerned State.) Unusually (in the context of the history of the Council), the US then proposed an oral amendment to the Japanese text essentially re-inserting the original language (thereby re-increasing the frequency of reporting). In the view of the US, this was necessary in light of the deteriorating situation in Cambodia.
Japan regretted the decision to put forward this oral amendment and called for a vote.
The Council rejected the amendment, with 12 in favour, 20 against and 15 abstentions. The resolution as a whole was then adopted by consensus.
The functioning of the Council in 2018
During the closing segment of the Council, the President gave an update on the Bureau’s efforts to find a solution to the sustainability of the Council’s meetings, in light of the need to reduce the number of regular Council session meetings in 2018 to 130.
The Joint Task Force on the Workload of the Human Rights Council, which was set up last May, presented its final report to the Bureau before the beginning of the 36th session. Based on the report, the Bureau decided to put forward four measures for approval by the Council’s membership. These included: streamlining the duration of each panel discussion to two hours; streamlining the plenary segment of each country’s UPR to 30 minutes; reverting to the speaking time limits for general debates and interactive dialogues of three and two minutes for Members and Observers respectively, and two minutes for all during panels; and requesting the General Assembly to provide the necessary support for up to 20 fully serviced additional meetings to be held by the Council annually.
In the end however, because there was no consensus on these proposals, the Council’s decision on the matter was deferred to a future organisational meeting, to be held on the 20th of October. States including inter alia Cuba, Venezuela (on behalf of the NAM), the Maldives, Haiti, Japan, and the Russian Federation, in particular, voiced concerns.
From the communications received by the President, it appears that a main point of contention was the proposed reduction in speaking time during the adoption of the UPR outcome reports. States argued that such a measure would prevent them from voicing their opinion on the Review before the adoption of the report, and runs contrary to the provisions of the Council’s Institutional Building Package. Peru and the European Union also highlighted the need to look beyond the proposed measures, and reflect, more widely, on the functioning of the Council in general, in order for it to better deliver on its mandate.
Photo credits
Feature photo: During the votes, at 36th session of the Human Rights Council. 28 September 2017. UN Photo/ Jean-Marc Ferré under CC BY-NC-ND 2.0.
Zeid Ra’ad Al Hussein, United Nations, High Commissioner for Human Rights, at 36th session of the Human Rights Council. 11 September 2017. UN Photo / Jean-Marc Ferré under CC BY-NC-ND 2.0.
Sheikh Mohammed bin Abdulrahman Al-Thani, Minister of Foreign Affairs of Qatar, at 36th session of the Human Rights Council. 11 September 2017. UN Photo / Jean-Marc Ferré under CC BY-NC-ND 2.0 licensed under CC BY-NC-ND 2.0.
Carmen Almendras, Vice Minister of Institutional and Consular Management of the Plurinational State of Bolivia , at 36th session of the Human Rights Council. 11 September 2017. UN Photo / Jean-Marc Ferré under CC BY-NC-ND 2.0 licensed under CC BY-NC-ND 2.0.
Faustin Archange Touadera, President of the Central African Republic, at 36th Session of the Human Rights Coucil. 27 september 2017. UN Photo / Jean-Marc Ferré licensed under CC BY-NC-ND 2.0.
Timo Soini, Minister for Foreign Affairs of Finland, at 36th session of the Human Rights Council. 11 September 2017. UN Photo / Jean-Marc Ferré under CC BY-NC-ND 2.0.
Dali Anger, Albert Kwokwo Barume and Grand Chief Wilton Littlechild at the annual half-day panel discussion on the rights of indigenous peoples, 36th Session of the Human Rights Council. 20 September 2017 © Human Rights Council Secretariat
Marzuki Darusman, Chairperson of the Independent International Fact-finding Mission on Myanmar, at 36th Session of the Human Rights Council. 19 September 2017. UN Photo / Jean-Marc Ferré licensed under CC BY-NC-ND 2.0.
Fatsah Ouguergouz, Chairperson of the Commission of Inquiry on Burundi, at 36th Session of the Human Rights Council. 19 September 2017. UN Photo / Jean-Marc Ferré licensed under CC BY-NC-ND 2.0.
Rosa Kornfeld-Matte, Independent Expert on the enjoyment of all human rights by older persons, at 36th session of the Human Rights Council. 11 September 2017. UN Photo / Jean-Marc Ferré licensed under CC BY-NC-ND 2.0.
Pablo de Greiff, Special Rapporteur on truth, justice, reparation and guarantees of non-recurrence, at 36th session of the Human Rights Council. 11 September 2017. UN Photo / Jean-Marc Ferré licensed under CC BY-NC-ND 2.0.
Léo Heller, Special Rapporteur on the human right to safe drinking water and sanitation, at 36th session of the Human Rights Council. 11 September 2017. UN Photo / Jean-Marc Ferré licensed under CC BY-NC-ND 2.0.
Houria Es-Slami, President of the Working Group on Enforced Disappearances, at 36th session of the Human Rights Council. 11 September 2017. UN Photo / Jean-Marc Ferré licensed under CC BY-NC-ND 2.0.
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