ATTN: Ambassadors, Permanent Representatives of UN Member States to the Human Rights Council in Geneva
Paris, Geneva, April 17th 2007
RE: Written Comments to the Draft Code of Conduct for Special Procedures
Excellencies,
Following Resolution 2/1 of November 27th 2006, the Human Rights Council has asked the Inter-sessional Working Groups to elaborate a Code of Conduct within the framework of the Working Group on Review 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 (...)"
In respect to drafting the Code of Conduct, the task to "improve and rationalize" the mechanisms and functions should be seen as a guiding principle. Thus, the Code should not weaken the mechanisms and their protective capacities.
Yet in the draft Code of Conduct presented by the African Group on March 13th 2007, a number of provisions currently weaken the protective capacities rather than improve them, leading to a severe restriction of the preventive function of the Rapporteurs. Furthermore, other elements that could significantly improve the mechanisms and which should be considered, are absent from the draft. We would like to draw these to your attention, and call upon you to ask for their inclusion in the Code of Conduct:
A. Threats to the current protective capacities
1. Narrowing of the scope of "urgency" (Article 12)
The notion of "urgency" is narrowed in the draft Code of Conduct (draft CoC). Hence, while the current practice, outlined in the June 2006 Manual of Procedures, defines as "urgent" a situation where a human rights violation is "imminent" or "ongoing", the draft CoC narrows the definition to only "massive violations" of human rights.
The aim of the current definition is to enable a prompt reaction from States in order to prevent human rights violations. With the draft CoC, the preventive mechanisms would only work for "massive" violations: should a person be on death row facing imminent execution, and a Rapporteur would receive credible information about a partial trial or reasons for an unfair execution, the Rapporteur would not be able to use the urgent procedures to alert the concerned State and prevent the execution. Moreover, specific procedures already exist for "massive" violations, the 1503 and 1235 procedures, both of which are currently maintained within the Council.
2. Narrowing the preventive capacity of publicity and awareness (Article 10)
In the current draft, Article 10 limits the possibility for Special Procedures to communicate their findings to the public, through a misconception of their role:
- it calls 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 is 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.
- it calls upon mandate holders to communicate the conclusions and recommendations to the Council, prior to their disclosure. The current practice and rule is to communicate the findings to the concerned State, prior to publicising them so as to enable the State to respond. Adding an additional hurdle in waiting for the Council to have been informed would limit the preventive capacity of public declarations.
3. Narrowing immediate alert to Governments (Article 11)
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 hampering the urgent communication of the allegation to the concerned authority. The example of an imminent execution is relevant here as well.
B. Propositions for Improvement
1. Protection of Victims and Witnesses
On March 10th 2007, in the Philippines, a woman was shot dead following her submission of a testimony to the UN Special Rapporteur on extrajudicial killings, during his visit to the country a few weeks earlier. This fact is only the latest to remind us of the extreme vulnerability of victims and witnesses of human rights violations. The work of the Special Procedures, in collecting information from them and disclosing the nature of the violations puts them at risk of reprisals. Thus the Code of Conduct should include, within
- Article 5, on the prerogatives: "The mandate holder should act for the defense of victims of violations, notably in asking for urgent measures by concerned States, inviting governments to respond to precise allegations and grant reparations"
- Article 7, on the Sources of information, a reference to the primary necessity to ensure the protection witnesses and sources of information.
2. Cooperation of States
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:
- 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;
- the absence of interference in the relationship built between mandate holders and civil society;
- the primary duty to ensure the protection of victims and witnesses, and the acceptance of the confidentiality of sources of information;
- the implementation of their recommendations. 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. It would also improve the protective capacities in a number of aspects, 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 at your disposal for any further information.
Yours sincerely,
Sidiki KABA
President