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Published online by Cambridge University Press: 16 October 2015
How does the Office of the High Commissioner for Human Rights (OHCHR) discharge its mandate of “promoting and protecting the effective enjoyment by all of all civil, cultural, economic, political and social rights”, especially in armed conflicts and other situations of violence? What are its concrete responsibilities, and how does it work to generate respect for the rule of law on the ground? This article aims to provide an overview of OHCHR's activities, and point to some of the challenges associated with its work to generate respect for the rule of law, in particular in violent contexts. It begins with an overview of the unique mandate of OHCHR and situates it within the broader United Nations human rights machinery. It then gives an account of OHCHR's experience and approach in building respect for the rule of law, including in armed conflicts and post-conflict situations, outlining how this informs OHCHR's field setup. Finally, the article summarizes the main challenges that OHCHR faces in the discharge of its mandate. It highlights the need for more concerted action on the part of human rights/humanitarian protection organizations on the ground, despite differences in mandates and constituencies.
1 Ban Ki-Moon, UN Secretary-General, “Opening Remarks at News Conference”, 23 January 2008, available at: www.un.org/apps/news/infocus/sgspeeches/search_full.asp?statID=176 (all internet references were accessed in December 2014).
2 See paragraph 18 of the Vienna Declaration and Programme of Action: “The World Conference on Human Rights recommends to the General Assembly that when examining the report of the Conference at its forty-eighth session, it begin, as a matter of priority, consideration of the question of the establishment of a High Commissioner for Human Rights for the promotion and protection of all human rights.”
3 UNGA Res. 48/141, 20 December 1993, para. 4(a).
4 Ibid. The resolution further states that the High Commissioner is appointed by the Secretary-General and approved by the General Assembly, with due regard to geographical rotation, and has a fixed term of four years with a possibility of one renewal for another fixed term of four years. She/he has the rank of Under-Secretary-General.
5 The HRC is an intergovernmental entity made up of forty-seven States, in charge of promoting and protecting human rights as required by the UN Charter (in particular, Article 55). The confusion was even greater at the time when the HRC was named the Commission of Human Rights: see Andrew Clapham, “The Office of the High Commissioner for Human Rights”, in Philip Alston and Frédéric Mégret (eds), The UN and Human Rights, 2nd ed., Oxford University Press, Oxford, forthcoming 2016, p. 3, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2190811.
6 To date, ten such committees (or “treaty-based bodies”) are established: the Human Rights Committee; the Committee on Economic, Social and Cultural Rights; the Committee on the Elimination of Racial Discrimination; the Committee on the Elimination of Discrimination against Women (CEDAW); the Committee against Torture; the Subcommittee on Prevention of Torture; the Committee on the Rights of the Child; the Committee on Migrant Workers; the Committee on the Rights of Persons with Disabilities; and the Committee on Enforced Disappearances.
7 The special procedures report on country-specific human rights situations or particular thematic issues. There are to date thirty-seven thematic and fourteen country mandates; See OHCHR, “Special Procedures of the Human Rights Council”, available at: www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx.
8 OHCHR, OHCHR Report 2014, Geneva, 2014. It is important to note that the OHCHR is currently undergoing changes in its internal structure. See High Commissioner's Annual Report, Opening Statement, Item 2, available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15642&LangID=E#sthash.2h61aLv3.dpuf.
9 See OHCHR, “Who We Are”, available at: www.ohchr.org/EN/AboutUs/Pages/WhoWeAre.aspx.
10 OHCHR, above note 8.
11 See, on this topic, Christiane Bourloyannis-Vrailas and Linos-Alexander Sicilianos (eds), The Prevention of Human Rights Violations, Brill, The Netherlands, 2001.
12 See “The Secretary-General's Five-Year Action Agenda”, 25 January 2012, available at: www.un.org/sg/priorities/sg_agenda_2012.pdf (emphasis added). Listed goals are: I. Sustainable development; II. Prevention; III. Building a safer and more secure world by innovating and building on our core business; 4. IV. Supporting nations in transition; V. Working with and for women and young people.
13 OHCHR, OHCHR Report 2013, Geneva, 2013, “Impunity and the Rule of Law” section, p. 33.
14 Hélène Sallon, “Libertés, droits des femmes: Les avancées de la Constitution tunisienne”, Le Monde Afrique, 27 January 2014, available at: www.lemonde.fr/tunisie/article/2014/01/27/des-avancees-majeures-dans-la-constitution-tunisienne_4354973_1466522.html.
15 See the letter from Navi Pillay to the President of the Assemblée Nationale Constituante, Mustapha Ben Jaâfar, available in French at : http://news.tunistribune.com/?q=node/3177#sthash.oNRqETQy.dpufhttp://news.tunistribune.com/?q=node/3177; and also “Navi Pillay: La nouvelle constitution tunisienne répond aux normes internationales en matière de droits de l'Homme”, 3 March 2014, available at: www.aa.com.tr/fr/afrique/296157--navi-pillay-la-nouvelle-constitution-tunisienne-repond-aux-normes-internationales-en-matiere-de-droits-de-l-homme.
16 See also OHCHR's webpage on Tunisia, available at: www.ohchr.org/EN/countries/MENARegion/Pages/TNIndex.aspx.
17 OHCHR, above note 13, “Impunity and the Rule of Law” section, pp. 32–33.
18 Ibid.
19 See, for example, OHCHR, “Towards Developing Country Engagement Strategies on Minorities”, available at: www.ohchr.org/Documents/Publications/Strategies_on_minoritiesEN.pdf.
20 The UN Secretary-General can also trigger a “special circumstances” mechanism, in relation to a country where there is no UN peacekeeping mission or special political mission on the ground but where demands upon the UN are likely to rise due to a situation of armed conflict, heightened political instability or social unrest, or a significant natural disaster with potential political repercussions. Within forty-eight hours of the designation of special circumstances, an inter-agency task force co-chaired by the appropriate Department of Political Affairs senior official and the chair of the relevant regional UN Development Group team has to be established, see United Nations, Special Political Missions Start Up Guide 2012, New York, 2012, p. 8, available at: http://peacemaker.un.org/sites/peacemaker.un.org/files/SPMStartupGuide_UNDPA2012.pdf.
21 See OHCHR, “OHCHR in the World: Making Human Rights a Reality on the Ground”, available at: www.ohchr.org/EN/Countries/Pages/WorkInField.aspx.
22 See Report of the Secretary-General's Internal Review Panel on United Nations Action in Sri Lanka, November 2012, available at: www.un.org/News/dh/infocus/Sri_Lanka/The_Internal_Review_Panel_report_on_Sri_Lanka.pdf.
23 Ibid., p. 28, para. 80.
24 More information about the initiative is available at: www.un.org/sg/rightsupfront/.
25 “Human Rights Up Front”; available at: www.un.org/sg/rightsupfront/doc/RuFAP-summary-General-Assembly.shtml.
26 “The Protection of Human Rights in Humanitarian Crises”, Joint Background Paper by OHCHR and UNHCR IASC Principals, 8 May 2013, para. 4, available at: www.refworld.org/cgi-bin/texis/vtx/rwmain?page=publisher&publisher=IASC.
27 Ibid., para. 15.
28 Ibid.
29 These past years, the UN has elaborated many policy documents on engagement with armed non-State actors. See Brian McQuinn and Fabio Oliva, Preliminary Scoping Report: Analysing and Engaging Non-State Armed Groups in the Field, UN System Staff College, 26 June 2014, p. 6, available at: www.unssc.org/home/news/analyzing-and-engaging-non-state-armed-groups-unssc-scoping-report.
30 See UN, Report on the Protection of Civilians in the Non International Armed Conflict in Iraq: 5 June–5 July 2014, available at: www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_POC%20Report_FINAL_18July2014A.pdf; see in particular the section on “Violations Committed by ISIL and Associated Armed Groups”, p. 9.
31 Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Ukraine, UN Doc. A/HRC/27/75, 19 September 2014, paras 16–17.
32 OHCHR, above note 13.
33 OHCHR, “Open Wounds: Torture and Ill Treatment in the Syrian Arab Republic”, 14 April 2014, available at: www.ohchr.org/EN/NewsEvents/Pages/TortureInSyria.aspx.
34 See OHCHR, “High Commissioner for Human Rights Urges Support for Afghan Efforts to Deal with Impunity”, press release, 29 January 2005, available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=7941&LangID=E. See also the 2012 Nepal conflict mapping, which aimed to document and analyze “the major categories of conflict-related violations of international human rights law and international humanitarian law that allegedly took place in Nepal from February 1996 to 21 November 2006”. OHCHR, “UN Releases Report Charting Ten Years of Violations during Nepal Conflict”, press release, 8 October 2012, available at: www.ohchr.org/RU/NewsEvents/Pages/DisplayNews.aspx?NewsID=12637&LangID=E.
35 OHCHR, Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo between March 1993 and June 2003, August 2010, p. 2, available at: www.ohchr.org/en/countries/africaregion/Pages/rdcProjetmapping.aspx.
36 Ibid.
37 Ibid.
38 Ibid., pp. 369–393.
39 See for example Human Rights Watch, “DR Congo: UN Report Exposes Grave Crimes”, 1 October 2010, available at: www.hrw.org/news/2010/10/01/dr-congo-un-report-exposes-grave-crimes.
40 See the press statement of the US Department of State, “UN Mapping Report on Violations of Human Rights in the Democratic Republic of the Congo”, 1 October 2010, available at: http://www.state.gov/r/pa/prs/ps/2010/10/148549.htm
41 All comments by States are available on the Mapping Report webpage, available at: www.ohchr.org/en/countries/africaregion/Pages/rdcProjetmapping.aspx.
42 See Ministry of Justice and Human Rights, DRC, “Observations du gouvernement (de la RDC) sur le Rapport du Projet Mapping concernant les violations les plus graves des droits de l'homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République Démocratique du Congo”, 7 August 2010, available at: www.ohchr.org/Documents/Countries/CD/DRC_Report_Comments_DRC.pdf.
43 See Human Rights Watch, “Tackling Impunity in Congo: Meaningful Follow-Up to the UN Mapping Report”, 1 October 2010, available at: www.hrw.org/fr/news/2010/09/22/dr-congo-meaningful-follow-un-mapping-report.
44 See OHCHR, Manual on Human Rights Monitoring, 2011, Chapter 3, available at: www.ohchr.org/Documents/Publications/Chapter03-MHRM.pdf.
45 Recent commissions of inquiry mandated by the HRC include: the 2006 Commission of Inquiry on Lebanon (HRC Res. A/HRC/S-2/1, 11 August 2006); the 2009 United Nations Fact-finding Mission on the Gaza Conflict (HRC Res. A/HRC/RES/S-9/1, 12 January 2009); the 2010 International Fact-finding Mission to Investigate Violations of International Law, Including International Humanitarian and Human Rights Law, Resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance (HRC Res. A/HRC/RES/14/1, 23 June 2010); the 2010 International Commission of Inquiry on Libya (HRC Res. A/HRC/RES/S-15/1, 25 February 2011); the 2011 International Commission of Inquiry on the Ivory Coast (HRC Res. A/HRC/RES/16/25, 25 March 2011); the 2011 Independent International Commission of Inquiry on the Syrian Arab Republic (HRC Res. A/HRC/RES/S-17/1, 18 October 2011); and the 2013 Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea (UN Doc. A/HRC/22/13, 21 March 2013).
46 Recent examples include the 2004 International Commission of Inquiry on Darfur (UNSC Res. 1564 (2004)); the 2009 International Commission of Inquiry on Guinea (established by the UN Secretary-General on 16 October 2009, UN Doc. S/2009/556); the 2010 Secretary-General's Panel of Experts on Accountability in Sri Lanka (established by the UN Secretary-General on 22 June 2010, UN Doc. SG/SM/12967); and the 2013 International Commission of Inquiry on the Central African Republic (UNSC Res. 2127 (2013)).
47 See, for example, the OHCHR Mission to Kyrgyzstan to investigate serious violations of human rights in Andijan, Uzbekistan, in May 2005; the OHCHR Mission to Western Sahara and Refugee Camps in Tindouf (2006); the OHCHR Fact-Finding Mission to Kenya (2008); the OHCHR mission on the situation of human rights in Honduras since the coup d'état of 28 June 2009 (2009); and the OHCHR Mission in Mali (2013).
48 See also Alston, Philip, “The Darfur Commission as a Model for Future Responses to Crisis Situations”, Journal of International Criminal Justice, Vol. 3, No. 3, 2005, pp. 600–607CrossRefGoogle Scholar.
49 OHCHR, OHCHR Report 2011, “Armed Conflict and Insecurity” section, Geneva, 2011.
50 Ibid., p. 94.
51 Ibid.
52 This could be an issue in the Central African Republic, for instance, where both a commission of inquiry and the International Criminal Court are present. See Annyssa Bellal, “Central African Republic: From Conflict to Chaos and Back Again?”, in Stuart Casey-Maslen (ed.), The War Report 2013, Oxford University Press, Oxford, 2014.
53 Available at: www.ohchr.org/Documents/Publications/CoI_Guidance_and_Practice.pdf.
54 Hannum, Hurst, “Human Rights in Conflict Resolution: The Role of the Office of the High Commissioner for Human Rights in UN Peacemaking and Peacebuilding”, Human Rights Quarterly, Vol. 28, No. 1, 2006, p. 40CrossRefGoogle Scholar.
55 OHCHR, above note 13, “Violence and Insecurity” section, pp. 82–95.
57 Among them, one could mention the DPA, DPKO, OCHA, UNHCR and UNICEF.
58 The application of human rights in situations of armed conflict, whether international or non-international, has been confirmed many times by the International Court of Justice in its 1996 Nuclear Weapons Advisory Opinion of 8 July 1996, ICJ Reports 1996, as well as in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2004, ICJ Reports 2004. The applicability of international human rights law in situations of armed conflict was also confirmed in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 9 December 2005, ICJ Reports 2005.
59 See also Bertrand Ramcharan, “The United Nations High Commissioner for Human Rights and International Humanitarian Law”, Program on Humanitarian Policy and Conflict Research Occasional Paper Series, Spring 2005.
60 See, among the many different OHCHR reports on countries in situations of armed conflict, Situation of Human Rights in the Central African Republic, Report of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/24/59, 12 September 2013. In the High Commissioner's 2008 report on the human rights violations resulting from Israeli military attacks and incursions in the Occupied Palestinian Territory, it was recalled that “both Israel and the Palestinian Authority, as well as Hamas in Gaza, carry obligations under international humanitarian law and international human rights law vis-à-vis the civilian populations in both Israel and the [Occupied Palestinian Territory]”: UN Doc. A/HRC/8/17, para. 4.
61 H. Hannum, above note 54, p. 19; see also A. Clapham, above note 5, p. 31.
62 OHCHR, above note 8, “OHCHR's Approach to Field Work” section, p. 141.
63 UN Doc. E/CN.4/1997/11, Annex. See OHCHR, International Legal Protection of Human Rights In Armed Conflicts, New York and Geneva, 2011, pp. 104–106.
64 See OHCHR, Training Manual on Human Rights Monitoring, New York and Geneva, 2001, Chapter 16, pp. 327–362, available at: www.ohchr.org/Documents/Publications/training7Introen.pdf.
65 A. Clapham, above note 5, p. 33. Another difficulty in human rights fieldwork was highlighted by Todd Howland. Commenting on the work of the Human Rights Division (HRD) of the peacekeeping operation in Angola, he noted that: “The objective for human rights interventionists is to improve the situations they encounter, rather than simply denouncing them. Nonetheless, for most human rights activists, working with a government is heresy. Thus, it is not surprising that the HRD's work was controversial. Some observers have lauded the HRD's work with the Angolan government as a creative cooperation that opened opportunities for change previously unavailable in Angola. Others, however, worry that the support provided to the Angolan government by the HRD is nothing more than a costly legitimization of the present widespread violations.” Howland, Todd, “UN Human Rights Field Presence as Proactive Instrument of Peace and Social Change: Lessons from Angola”, Human Rights Quarterly, Vol. 26, No. 1, 2004, p. 16CrossRefGoogle Scholar.
66 See OHCHR, “Policy and Methodological Materials”, available at: www.ohchr.org/EN/PublicationsResources/Pages/MethodologicalMaterials.aspx.
67 OHCHR, above note 44, Chapter 17, p. 4, available at: www.ohchr.org/Documents/Publications/Chapter17-28pp.pdf.
68 Ibid., p. 3.
69 Ibid., Chapter 5, p. 15, available at: www.ohchr.org/Documents/Publications/Chapter05-MHRM.pdf.
70 The table of contents of the Manual is available at: www.ohchr.org/Documents/Publications/OHCHRTableContents.pdf.
71 An Agenda for Peace: Preventative Diplomacy, Peace-Making and Peace-Keeping, Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, UN Doc. A/47/277–S/2411.
72 Renewing the United Nations: A Programme for Reform, UNGA Res. 51/950, UN GAOR, 51st Sess., UN Doc. A/51/950, 1997.
73 Todd Howland, above note 65, p. 4.
74 Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305 S/2000/809, 21 August 2000, para. 244.
75 Hans Corell, UN Legal Counsel, “The Role of the United Nations in Peacekeeping: Recent Developments from a Legal Perspective”, keynote address delivered at “National Security Law in a Changing World: The Tenth Annual Review of the Field”, available at: http://legal.un.org/ola/legal_counsel8.aspx.
76 OHCHR, above note 8, “OHCHR's Approach to Field Work” section, p. 143. The text of the memorandum of understanding between OHCHR and the DPKO can be found in Bertrand Ramcharan (ed.), Human Rights Protection in the Field, Martinus Nijhoff, Leiden and Boston, 2006, p. 269.
77 These are Afghanistan (UNAMA), Burundi (BNUB – closed in December 2014), the Central African Republic (MINUSCA), Côte d'Ivoire (UNOCI), the Democratic Republic of the Congo (MONUSCO), Guinea-Bissau (UNIOGBIS), Haiti (MINUSTAH), Iraq (UNAMI), Liberia (UNMIL), Libya (UNSMIL), Mali (MINUSMA), Somalia (UNSOM), South Sudan (UNMISS) and Sudan (Darfur) (UNAMID): see Ibid. See also the DPKO website, available at: www.un.org/en/peacekeeping/issues/humanrights.shtml.
78 OHCHR staff, “Protection in the Field: Human Rights Perspectives”, in B. Ramcharan, above note 76, p. 120.
79 The list of statements is available at: www.ohchr.org/EN/NewYork/Pages/Statements.aspx.
80 Strengthening of the United Nations: An Agenda for Further Change, Report of the Secretary-General, UN Doc. A/57/387, para. 47, available at: www.un.org/events/action2/A.57.0387.pdf.
81 Statement of the High Commissioner at the 26th Session of the Human Rights Council, 10 June 2014, available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14674&LangID=E.