ATTN Ambassadors,
Permanent Representatives of UN Member States to the Human Rights Council in Geneva
Paris, Geneva, June 11th 2007
RE - URGENT
Draft Code of Conduct for Special Procedures - Strong Protection Stepbacks
Excellencies,
Following Resolution 2/1 of November 27th 2006, the Human Rights Council has been tasked to elaborate a Code of Conduct for mandate holders of Special procedures.
Paragraph 6 of General Assembly Resolution A/RES/60/251 that establishes the Human Rights Council provide important considerations related to the Special Procedures: "The Council shall assume, review and, where necessary, improve and rationalize all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights, in order to maintain a system of special procedures (...)". Thus, the Council, in applying a guiding policy of "improv[ing] and rationaliz[ing]" the mechanisms, should not weaken their protective capacities.
Yet a new version of the draft Code of Conduct circulated by the African Group over the week-end contains a number of new provisions that would strongly weaken the current protective capacities of the special procedures, if not prevent any effective work, leading to a strong impairement of their basic function.
Within this draft, a number of changes have been introduced, that correspond to specific negociations and discussions to improve the text in light of the afore mentionned guiding policy. They are welcomed. Yet, a number of preoccupying provisions are new and deserve prompt attention, consideration and evaluation. FIDH calls for their revision, in order to finalise a consensual agreement around the Code of conduct.
The following are the main preoccupations that we would like to urge you to consider modifying within the text.
1. Letters of allegation (Article 9)
The draft contains new provisions limiting the content of the letters of allegations that are traditionnally sent to special procedures :
- Communications would contain no significant element of fact and qualification
The text proposes that the letters of allegations, to be admissible, should not contain any description of the facts, nor any description of the rights that are allegedly being violated. In practice, there is nothing else that a letter of allegation could include than a description of the facts and of the rights being violated. Such provision completely limits the capacity of victims and NGOs to raise situations to the attention of the Special Procedures. In preventing the admissibility of such letters, the text prevents the rapporteurs from receiving any relevant information to base their evaluation on.
- "Exhaustion of domestic remedies" : A purely reactive rather than preventive function
The draft asks for the communication to be based on facts for which domestic remedies are or have been exhausted. This goes against the current practice and nature of the procedures, which are not a quasi-judicial body. Moreover, Special Procedures should be able to raise situations that are not necessarily dealt within local remedies, in order to encourage action at the local level. If the procedure intervenes once every remedy has been exhausted, the preventive function of the procedure is missed.
The text could instead ask for the source of the letter of allegation to mention what local remedies have been used. This would put the draft in conformity with the current practice.
- "Non duplication" : a limit to the plurality of mandates
The draft text forsees the inadmissibility of letters of allegation on situation that are already dealt with by other procedures or treaty bodies. This hinders the value of the diversity of the procedures. A single situation often corresponds to violations of various rights, and require action by various rapporteurs. Moreover, a SR cannot be asked to cover aspects that are not within its mandate.
For example, if a human rights defender is arbitraliy arrested and detained incommunicado, in harsh conditions, suffering serious health problems, it concerns the SR on Human rights defenders, the WG on arbitrary detention, the SR on the right to health. It could even concern the SR on the independence of judges and lawyers, if the judgement has been marred by executive interventions.
2. Field visits (Article 10)
- Permanent supervision by host country vs. private interviews : threats to the source of information
The current draft foresees that while on visit, the mandate holders remain in the care of the host authorities "at all times of their visit". This would prevent, under alleged "security reasons", the mandate holders from holding private interviews with victims, detainees or NGOs, of which the mandate holder might not want to reveal the name, in order not to jeopardize their safety and security. The work of the Special Procedures, in collecting information and disclosing the nature of the violations puts the source of information at risk of reprisals. Private interviews at the discretion of the mandate holder should therefore remain possible.
-Finalized programmes of visit prevent real in situ evaluations
The current draft foresees that the programme should be finalised with the host country representative. This might prevent last minute changes of their programme, that are often necessary to get a real appreciation of the situation.
As an example, when mandate holders announce the places of detention they would like to visit at the last minute, it prevents the authorities from "cleaning" the place prior to the visit, thus enabling the mandate holder to get a full appreciation of the real detention conditions. Experience has indeed shown that on some occasions, early announcement of the visit of the detention centres had lead to the transfer of key detainees.
3. Urgent appeals (Article 14) and Communication with Governments (Article 13)
-Narrowed scope of "urgency" limits preventive function
The notion of "urgency", is narrowed in the new draft Code of Conduct, to situations involving "loss of life or which are eminently life threatening", compared to situations of "imminent or ongoing" violations ( which is the current admitted definition of "urgency").
Thus, house evictions, in cases of colonisation, which were treated under urgent procedures, would not be eligible any more, an intervention that was preventive also, of other major violations.
- Narrowed immediate alert to Governments also limits the preventive functions
The current rule for the communication of information to the Government is that Special Procedures should send their allegations to the Permanent Mission of the concerned State in Geneva. An important exception to this rule lies in the Manual of Procedures. In cases of "urgent situations", mandate holders can communicate "simultaneously" to the concerned authority and to the Permanent Mission. This is seen to reinforce the preventive and protection capacity in case of an imminent or ongoing violation. Yet the draft CoC eliminates this exception. Thus, closing hours of Permanent Missions in Geneva, or the overburden of small missions would be hindering the urgent communication of the allegation to the concerned authority.
4. Recommendations and conclusions (Article 12)
- Narrowed scope for public declaration limits preventive functions
The current draft, limits the possibility for Special Procedures to communicate their findings to the public, in calling upon mandate holders to avoid any declarations "that would harm the constructive dialogue" with the concerned States. The notion of "constructive dialogue" is not a measurable one and could lead to severe restrictions of public declarations. Concerned States that are responsible for human rights violations often have an interest in hiding the violation or in denying their responsibility, which sometimes can be criminally liable in front of national or international courts. Hence, Rapporteurs would often be accused of "harming a constructive dialogue" if they disclose the truth about an allegation to which a concerned States have refused to remedy or for which it has denied its responsibility.
5. Status of mandate holders (Article 4)
- Respect of national legislation should not prevent the normal exercise of the investigation mandate The text calls upon mandate holders to respect national legislation and regulations of the country wherein they are exercising their missions. While we understand that mandate holders should not underake criminal activities, this provision might hinder their work should national legislation contradict international human rights law.
As an example, if national regulations considers human rights defenders as terrorits and prevents them to have any international contact. If it foresees incommunicado detention of these detainees, mandate holders will not have the possibility too meet with them, even though these elements are contardictory to international law.
The draft could thus usefully include that mandate holders ought to respect national legislation and regulations, "provided that they are inconformity with international human rights law".
6. Cooperation of States
-Member States’ obligation to cooperate with Special procedures should be clearly spell out
Paragraph 9 of GA Resolution 60/125 states that "(...) members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, [and] shall fully cooperate with the Council". Thus, the Code of Conduct should include a paragraph specifying the obligation of States to cooperate with the procedure, that includes:
1. the respect of the independence and impartiality of mandate holders as well as the facilitation of their work, including through country visits, in respect of their terms of reference;
2. the absence of interference in the relationship built between mandate holders and civil society;
3. the primary duty to ensure the protection of victims and witnesses, and the acceptance of the confidentiality of sources of information;
4. the implementation of their recommendations.
5. Should Member States repeatedly refuse to cooperate with Special Procedures, the Council should take appropriate measures.
In bringing these qualitative changes to the draft Code of Conduct, your country would help maintain the current protective and preventive capacities of the Special Procedures and bring about improvement, thus proving your strong commitment to reinforce the responsibility of all States, in application of the purposes and principles of the Charter of the United Nations and of the standards of the Universal Declaration of Human Rights, to respect human rights and fundamental freedoms for all.
Thanking you for your attention to this matter, I remain,
Yours sincerely,
Souhayr BELHASSEN
President
FIDH
Permanent delgation to the UN in Geneva
15 rue des Savoises, CH-1205 Genève, Switzerland - tel + 41 22 700 12 88, fax + 41 22 321 54 88 / sahmadi@fidh.org apomeon@fidh.org