UPR and Israel

The United Nations Human Rights Council is conducting the second cycle of its Universal Periodic Review mechanism. In January this year, Israel became the first country to refuse to attend its review session. That decision has been a diplomatic disaster. The Council has rescheduled the review for Tuesday 29th October. The question now is whether or not Israel will send a delegate to participate in this rescheduled session. So far, during the mechanism’s first two cycles, every single UN member state has attended its own review session. Every country, that is, except for Israel. The UPR relies upon universality – meaning that any country that pulls out can topple the house of cards. If Israel does not send someone – anyone – then its non-participation will both weaken the UPR and that country’s standing in the eyes of all of its peers.

In May 2012, Israel sent a letter stating that it would no longer engage with the Human Rights Council. During the Council’s first five years, its excessive scrutiny of and disproportionate attention to Israel had undermined the body’s credibility. There is no doubt that the Council is biased, selective and politicised in its treatment of Israel. But that country’s stance has widely been criticised by both its friends and foes. Non-participation not only sends a strong political and diplomatic message to those that criticise Israel, it also removes the possibility of that country presenting its position to the very many states who neither take a side nor have an interest in the conflict occurring within the Occupied Palestinian Territories. Failure to be present during discussions leaves those neutral, or disinterested, states only hearing one side of the debate.

But Israel’s decision not to participate in the Universal Periodic Review is far more serious than its disengagement from Council sessions. The UPR is a universal mechanism created as part of the reform process that disbanded the Commission on Human Rights and replaced that body with the Human Rights Council. UPR is an innovative mechanism that scrutinises every country’s human rights record during a four year cycle. The mechanism is a peer-review conducted by states, with input from UN independent experts, NGOs, national human rights institutions and other civil society actors. The reviews seek to provide transparency, accountability and scrutiny of national human rights records. Recommendations are then provided to the country concerned in order to strengthen and improve the realisation of human rights within their territories. Continue reading

Haiti Cholera Claims: Absolute Immunity vs Human Rights

On Monday, the United Nations formally declined to award compensation to individuals in Haiti who were affected by a cholera outbreak that began in October 2010. The UN failed to screen its peacekeepers for the disease prior to them entering into Haiti. Nepalese troops brought the disease into Haiti, a country that had not been affected by cholera for over 50 years. Poor waste management at the UN peacekeepers’ camp resulted in infected human faeces being deposited in a tributary that feeds into Haiti’s main river. Within the first 30 days, Haitian authorities recorded almost 2,000 deaths from cholera. In July 2011, the epidemic infected at a pace of one person every minute. The impact of the cholera outbreak has been devastating. Almost three years on from the outbreak, the country is still struggling to rid itself of the disease.

The UN does not dispute that its peacekeepers brought cholera into Haiti. Nor does it seek to absolve itself of blame for the conditions within the peacekeepers’ camp. The UN is seeking to avoid compensating victims of the cholera outbreak. Secretary-General Ban Ki-Moon has once again pointed to the Organisation’s absolute immunity from jurisdiction as a bar to individuals bringing claims against the UN. In the formal letter setting out the UN’s position, Ban Ki-Moon repeatedly points to the UN’s actions in Haiti since the outbreak. Rather than focusing on the fact that the UN is responsible for the cholera, he praises the Organisation’s efforts to contain and eradicate the disease. He makes clear, however, that compensation for individuals is not part of the clean-up package.

Lawyers acting on behalf of 5,000 victims called the UN’s response an ‘outrage’.

Throughout these victims’ struggle to seek justice, the UN has relied upon its absolute immunity from jurisdiction. That immunity traditionally is based on Article 105(1) of the Charter of the United Nations and on Section 2 of the Convention on Privileges and Immunities of the United Nations (CPIUN). However, such immunity violates the fundamental rights of individuals to access a court and to seek a remedy. As such, a counter-balance exists through the UN being required to provide alternative mechanisms for resolving disputes. Section 29 of the CPIUN and the Model Status of Forces Agreement both mandate that the UN set up local claims boards within any peacekeeping operation. Those claims boards are designed for individuals involved in a dispute with the UN or its staff. They allow such individuals to realise their rights to access a court and to seek a remedy despite the UN’s absolute immunity.

Alternative mechanisms for resolving disputes have not helped the 5,000 individuals affected by the cholera outbreak in Haiti. The UN insists that the cases issued on those victims’ behalf are not ‘receivable’ because they address ‘political’ or ‘policy’ matters rather than being private law claims. Therefore, the individuals concerned are denied an alternative dispute resolution mechanism that is supposed to counterbalance the UN’s immunity. Essentially, they are being denied their fundamental rights to access a court and to seek a remedy.

This simply is not good enough. Two months ago, lawyers for the victims issued an ultimatum demanding that the UN provide compensation to the victims within 60 days. Otherwise, the lawyers promised, they would bring a human rights-based challenge to the UN’s absolute immunity. Yesterday’s announcement by UN Secretary-General Ban Ki Moon sets the scene for that challenge to be made.

National courts have long-understood the United Nations to have absolute immunity from their jurisdiction. State immunity has evolved over recent decades, allowing restrictive immunity that distinguishes between acts jure imperii and those jure gestionis. A question remains about whether that doctrine applies to international organisations. Case law from various courts and jurisdictions shows that the UN’s absolute immunity has been challenged, albeit unsuccessfully on the facts of each case. The basis for those challenges have been that the bar to jurisdiction violates claimants’ rights to access a court and to a remedy. In all of the cases so far, the individuals’ ability to access alternative mechanisms for dispute resolution has been used to demonstrate that their rights have been realised. The difference for the 5,000 individuals from Haiti is that there is no alternative mechanism for resolving their dispute. This leaves those individuals with their fundamental rights being violated.

By invoking absolute immunity, the UN has either ignored or missed the point that all individuals have rights to access a court and a remedy. Those rights are being denied by the UN’s absolute immunity coupled together with its refusal to hear those claims within its own tribunals. The Organisation that created the modern system of international human rights law, and that is tasked with protecting and promoting those rights, is denying fundamental rights to these 5,000 individuals from Haiti. By failing to provide compensation to the victims of cholera in Haiti, the door has been opened for a successful human rights-based challenge to the UN’s absolute immunity – one that may have far-reaching implications and one that is long overdue.

The United Nations Human Rights Council’s Backwards Step on LGBT Rights

Last week, South Africagay flag quietly announced that it will not table a resolution on Lesbian Gay Bisexual and Transgender rights at the United Nations Human Rights Council’s 23rd Session. There had been significant expectation from states and civil society that the resolution would be discussed at the session, which is currently taking place in Geneva. The announcement is disappointing and demonstrates a step backwards in the fight for universal protection and promotion of sexual orientation and gender identity rights.  At present, we can only speculate about the reasons for South Africa’s decision, although a brief exploration of the history and politics over recent years will lead us to make some educated guesses.

The majority of states across the world do not recognise sexual orientation and gender rights. Positive steps taken towards equal marriage in France, some US states and the UK are drowned out by the criminalisation of homosexual acts across almost all African and Islamic countries. In those and other areas, there remains systematic oppression of, and discrimination against, sexual and gender minorities. Those violations are based on a person’s acts, identities, or both. Many of those states are the ones seeking to ensure that LGBT rights are not recognised as human rights.

The UN Human Rights Council is a politicised body. Dominant regional groups and political blocs use their collective weight to promote common objectives. The Organisation of Islamic Cooperation (OIC) clearly aims to ensure that sexual orientation and gender identity rights are not enshrined in international human rights law. The African Group, with a few notable exceptions, takes a similar stance. Events over the past decade demonstrate those states’ insistence that LGBT persons remain an unprotected minority group.

In 2003, Brazil sought to advance LGBT rights by tabling a resolution at the UN Commission on Human Rights. The OIC used various tactics to ensure that the resolution was deferred. Two years later, New Zealand’s statement in favour of sexual orientation rights was supported by 32 countries. In 2006, the Special Rapporteur on Extrajudicial, Summary and Arbitrary Killings highlighted persecution of LGBT persons. The Commission did nothing. Continue reading

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