Placing human rights at the heart of prevention: Short analysis of the report of the group of experts on ‘the contribution of the Council to prevention’

by Marc Limon, Executive Director of the Universal Rights Group Beyond the Council, Blog, Blog, International human rights institutions, mechanisms and processes

Ever since the establishment of the UN in 1946, the Organisation has recognised the central importance and value of prevention and declared its determination to place the approach at the centre of its work. Indeed, the very first words of the UN Charter make clear that the UN’s overriding mission is to prevent the gross and systematic human rights abuses and violent conflicts that had so scarred the world during the early 20th century:

‘We the peoples of the United Nations determined to save succeeding generations from the scourge of war…’

The last four UN Secretaries-General have each prioritised turning those words, and the concept of prevention, into an everyday practical reality. Boutros Boutros-Ghali (‘An Agenda for Peace,’ 1992), Kofi Annan (annual report to the GA, 1999; ‘Millennium Report,’ 2000; and ‘In Larger Freedom,’ 2005), and Ban Ki-moon (‘Human Rights Up Front,’ 2013) have all repeatedly called upon States to place prevention at the heart of their work. The current Secretary-General, António Guterres, has likewise made prevention his number one priority in Office.

Unfortunately, despite this persistent focus over more than three decades, when it comes to turning the broadly held mantra that ‘prevention is better than the cure’ into concrete international policies, the UN is no further forward today than it was in 1992.

Why is that the case?

One key reason has long been understood by UN leaders: the short-term political-economic calculations of politicians. As remarked by Kofi Annan in his 2000 ‘Millennium Report:’ ‘the UN has long argued that prevention is better than cure; that we must address root causes, not merely their symptoms. But aspirations have yet to be matched by effective action.’ ‘Political leaders,’ he explained, ‘find it hard to sell prevention policies abroad to their public at home, because the costs are palpable and immediate, while the benefits – an undesirable or tragic future event that does not occur – are more difficult for the leaders to convey and the public to grasp.’

A recent policy report by the Universal Rights Group (URG), ‘The Prevention Council,’ attempts to address this challenge by presenting an economic or ‘business’ case for prevention. This builds on the business case presented in the World Bank-UNDP report ‘Pathways for Peace.’ URG’s new report also argues that there is a second key reason why successive Secretaries-General have failed to translate their prevention ambitions into practical policies: the de facto side-lining of the UN’s human rights pillar.

While each of the Secretaries-General has recognised, in principle, the importance of the human rights pillar as a key part of a ‘whole of UN’ approach to prevention, in practice they have addressed their proposals for reform almost uniquely to the security pillar. This ‘securitisation of prevention,’ still evident today in the prevention section of Guterres’ new ‘Call to Action’ on human rights, has doomed repeated UN prevention agendas to failure and, worse, has created a dangerous misconception among States that ‘prevention’ relates only to ‘atrocity prevention’ (i.e. R2P), ‘conflict prevention’ and ‘peacekeeping.’

In reality, the international human rights system must necessarily play a central role in prevention, especially in the context of primary prevention (building national resilience to prevent human rights violations from happening in the first place) and secondary prevention (early warning and early engagement), if the UN is to ever deliver on its promise ‘to save succeeding generations from the scourge of war.’

2020: a golden opportunity to turn the Human Rights Council into the UN’s ‘Prevention Council’

In June 2018, the Human Rights Council adopted resolution 38/18 establishing a group of three eminent experts – or ‘rapporteurs’ – to consult with States and NGOs in Geneva and New York, as well as with the Secretary-General, High Commissioner and regional organisations, on how to finally rectify decades of UN failure on prevention by operationalising the Council’s prevention mandate (as set out in paragraph 5f of GA resolution 60/251) and placing that role at the heart of the UN’s overall prevention agenda. On 12 March 2020, during the 43rd session of the Council (just before it was suspended), the three experts presented a report summarising the findings of these consultations, and presenting a series of proposals.

The final report as presented by the Chair-rapporteur, Yvette Stevens, contains many important reflections on prevention and the human rights pillar’s role therein, and – crucially – proposes a range of steps to be taken by the High Commissioner and the Council that, if implemented, would transform their capacity to prevent human rights violations and crises. In particular, the report:

  • Effectively addresses both aspects of the Council’s prevention mandate under paragraph 5f of GA resolution 60/251, i.e. both the ‘role of the Council in the prevention of human rights violations [i.e. building human rights resilience] and its capacity to respond to human rights emergencies,’ as well as the ‘mutually reinforcing’ nature of those two elements.
  • Helpfully addresses the issue of definition: what is prevention in a Human Rights Council context? ‘Prevention,’ according to the three rapporteurs, ‘is a term with many meanings. Discussions about prevention at the UN tend to leave the term undefined, or to concentrate most often on the prevention of conflict.’ ‘This makes States apprehensive, fearing that prevention is a pretext to intervene in their internal affairs.’ The rapporteurs explain that this is not the case – the 5f mandate does not in any way threaten national sovereignty.
  • Reflects and furthers ‘the emerging consensus about widening and ‘upstreaming’ preventive work.’ As noted above, the fact that most discussions about prevention concentrate on conflict prevention ’reinforces apprehension about interventionism.’ Instead, the report calls on the Council to focus on ‘a long-term approach based on the identification of the root causes of crises, which, if not tackled, may lead to human rights emergencies or conflicts. These causes include factors such as various forms of discrimination or a lack of access to justice and lack of enjoyment of socioeconomic rights.’
  • Identifies the importance of shifting mindsets and approaches in the Council ‘from confrontation to dialogue and further engagement with States facing human rights challenges.’ In this context, the rapporteurs usefully highlight the potential importance of ‘confidential settings to conduct preventive diplomacy.’ Cooperation and dialogue, including with the option of confidential contacts between Council members and concerned States, ‘would help build trust and confidence’ – crucial if prevention is to work.
  • Argues that ‘by guaranteeing conditions of inclusion, or at the very least protection against the various forms of marginalization and discrimination, both of individuals and communities, human rights have a great potential to prevent the circumstances under which grievances usually occur.’
  • Goes into considerable detail about the ‘role of existing mechanisms’ in prevention. This is interesting but should not divert attention away from the core proposals presented in the report. The prevention role of existing mechanisms can be summarized as follows: a) the implementation of their recommendations is the basis of strengthening national resilience and thus preventing violations; b) the Special Procedures, in addition, also generate early warning information (either from their country visits, or by receiving communications); and c) the confidential complaints procedure could play an important role in gathering early warning information, but in practice it does not do so.
  • Correctly identifies the main barriers to effective prevention:
    • The UN’s historic obsession with the role of the Security Council and with conflict prevention/peacekeeping – i.e. the ‘securitisation’ of prevention.
    • ‘Siloisation’ of the different parts of the UN.
    • ‘Poor investments and weak commitments,’ – this is a nod towards the importance of presenting an economic or business case for increasing investments in early or upstream prevention (see URG’s business case).
  • Frames the relationship between the human rights pillar the other two pillars of the UN. ‘The sustaining peace and Sustainable Development Goals agendas constitute bridges between the UN human rights and the peace and security pillars, on the one hand, and the human rights and the development pillars, on the other.’
  • Does mention the importance of cooperation and coordination between the Council and relevant regional organisations (e.g. the African Union), even though this section is rather weak. Put simply: regional organisations understand on-the-ground realities and local complexities far better than the UN, whereas the latter has unparalleled moral authority. The two should therefore work together.

In terms of proposed actions and reforms, the report:

Primary prevention

  • Correctly emphasises the importance of the link between the Council and the SDGs ‘leaving no one behind.’ It calls for the UN to help States make progress with the ‘joined up’ implementation of human rights recommendations (UPR, Treaty Bodies and Special Procedures) and the SDGs and targets. This, it asserts, is the basis of national resilience to shocks – and thus of prevention.
  • Calls for ‘enhanced implementation of human rights recommendations’ This is indeed the basis of national resilience, and thus of preventing violations, preventing crises, and preventing wars. The rapporteurs argue that a key reason for the implementation gap that has developed in many States ‘is the sheer number of recommendations, and States’ limited technical capacity and resources to implement them.’
  • To help, the report welcomes ‘a number of initiatives have been taken in recent years in order to enhance the capacity of States to implement recommendations. This has included an initiative to assist States in the establishment of national mechanisms for implementation, reporting and follow-up.’
  • Notes, moreover, that ‘while the responsibility to implement human rights recommendations must be State-owned, the international community, and specifically the Council, should support States in their implementation efforts and their quest to prevent human rights violations.’ However, ‘the resources available to OHCHR for technical cooperation and capacity-building have been insufficient to match needs.’ ‘Furthermore, there is scope for more North-South, South-South and triangular cooperation between States, to enable mutual learning through the sharing of experiences.’
  • Offers ideas for reform of the Council’s delivery of technical assistance and capacity-building under item 10. One initiative, ‘led by Norway and Singapore, proposes a voluntary platform for dialogue and cooperation on human rights capacity-building and technical cooperation, under agenda item 10 of the Council’s sessions.’ Another proposal made by the rapporteurs is for the Council to ‘set up a human rights recommendations implementation facility.’

Secondary prevention

  • Calls for ‘the early warning capacity of her Office [to] be strengthened […] through increased capacity to receive and thoroughly analyse early warning signs emanating from all sources, including from Special Procedures, national human rights institutions, civil society, UN Country Teams, etc.’
  • ‘In addition,’ say the rapporteurs, ‘the type of situations that should trigger early warnings needs further definition.’ ‘Within the Council, there have been proposals for a range of criteria, including calls to action by the Secretary-General, OHCHR or Special Procedures; whether a State facilitates or obstructs the access of humanitarian actors, human rights defenders and the media; and whether a State cooperates with treaty bodies and the Council.’ ‘While these are useful signals,’ continues the report, ‘the first requirement ought to be the existence of a pattern, rather than isolated instances, of human rights violations. Furthermore, violations must be of a serious or grave nature. Thus, spikes in enforced disappearances, extrajudicial killings or emerging patterns of torture and ill-treatment should trigger attention. The targeting by State or non-State actors of human rights defenders, journalists or civil society organisations, who are often the main transmitters of information about human rights emergencies, is also of particular concern as this may also lead to information about any deterioration in the situation not reaching the international community.’
  • Makes a strong case that ‘the High Commissioner also has a critical role to play in bringing early signs of human rights emergencies to the attention of the Council.’
  • In that regard, the report makes clear that ‘the outcome of the [early warning] analyses should then be sent by the High Commissioner to the President of the Council or presented during the regular sessions of the Council. The opportunity for the High Commissioner to brief the Council could be enhanced.’ Unfortunately, the report’s proposals in this regard are rather confused. What should happen is for the Council to reaffirm the High Commissioner’s mandate to urgently report on early warning situations of emerging concern to members of the Council as and when she decides, including inter-sessionally. Such reporting should be done on an as-needs basis, reflect the urgency of the situation and the importance of timely consideration by the Council, and include the possibility of confidential briefings which may help build trust and ‘encourage greater cooperation from the State concerned.’
  • Presents useful guidance for what the Council should do where it believes early warning information as presented by the High Commissioner does indeed raise concerns. ‘While the Council is privy to early warning information, there has been relatively little discussion about developing its early action capacity. The type of early action to be taken should be decided on a case-by-case basis, depending on the specific country or regional context. One option could be a confidential meeting with the country concerned and/or, should the latter accept it, a good offices mission to conduct quiet diplomacy. The composition of the good offices mission should be decided on a case-by-case basis and could include the President and members of the Council, Special Procedures mandate holders, OHCHR or representatives of regional/sub-regional organisations.’
  • ‘Upon receipt of [early warning] analyses, the President of the Council, in consultation with the Bureau, should determine the course of action to be taken, including confidential Council sessions, preventive diplomacy or good offices missions to the State concerned.’

What if prevention doesn’t work?

  • The report helpfully explains that if the Council tries to reach out to the State concerned under its 5f prevention mandate, but it doesn’t work; it nonetheless has recourse to its ‘harder tools,’ both in terms of public diplomacy and accountability mechanisms. ‘In the event of a deterioration in the situation after a quiet diplomacy mission, the options currently available for action by the Council include a presidential statement (requiring the agreement of all member States), a request to OHCHR to prepare a report, a call for a special session, or the creation of an investigative body. These last two options have only been implemented in the past after a situation had deteriorated significantly.’

Featured image: UN Web TV

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