International Human Rights Law

The Roxham Road saga in Canada, and what it tells us about the popular feeling about migrants worldwide

/ Camille Marquis Bissonnette / Leave a comment

After years of negotiations, Joe Biden and Justin Trudeau have come to an agreement on the expansion of the Third Safe Country Agreement (TSCA) between the United States and Canada to irregular entry points, on March 24th, 2023. This led to the closure of Roxham Road at midnight on the following day. To summarize the legal context, until then, if asylum seekers were to cross the land border between the US and Canada they would be returned to whichever of these two countries they were in first. That is, however, unless they entered the second State through irregular entry points, which were not included in the previous version of the TSCA, adopted in 2002.

The new version of the TSCA, which is not yet publicly available and from which all the details have not yet been unveiled, applies to all crossings, by land or internal waters, including, and this is what is new, those between the regular points of entry. On both sides of the border, this expansion of the TSCA seems to obey public pressure to stop irregular entries into the country. Because people entering irregularly were mainly coming from the US to Canada, Canada agreed to welcome an additional 15,000 migrants from the Western hemisphere, a very mysterious formula, on a humanitarian basis in the upcoming year, to compensate partially.

For me, there is no well-founded argument to support the expansion, and even the upholding of the TSCA, as well as the closure of Roxham Road (see migration law experts on the matter here, here and here). Note, in particular, the TSCA is currently under judicial review by the Supreme Court of Canada for its conformity with the Canadian Charter of Rights and Freedoms.

Even if it would not violate human rights of human seekers per se, there are no measures adopted by States that have ever stopped migration, even the highest and most-sophisticated wall. In addition to being costly for States, obstacles to migration re-locate migration to other borders or to other points of irregular entry, often more dangerous ones. Additionally, they reinforce organized crime at the border by increasing recourse to falsified documents and smugglers, thus increasing security concerns for migrants and at the border. Ultimately, obstacles to migration increase the number of undocumented migrants within the country. Indeed, even though some asylum seekers used to enter the Canadian territory through an irregular entry point such as Roxham Road, they were screened by the RCMP – including on security grounds – and entered the regular asylum system by depositing a demand for asylum as soon as they arrived. It won’t be the case now that Roxham Road is closed since they will enter via clandestine means or paths and will thus not be identified and screened upon entry.

Yet the narrative that brought the Canadian government to negotiate to expand the TSCA and close Roxham Road is strong and deeply rooted in the political and popular discourses. Indeed, there has been a torrent of political and editorial calls for the closure of Roxham Road in Canada (see, for example, the public letter of Quebec’s Prime Minister and the comparison of a crossing of Roxham board with an all-inclusive trip by a federal opposition party on its social media). In January 2023, there were 68% of the population in the province of Quebec in favour of closing Roxham Road. 

To be fair, people in Quebec feeled that, because Roxham Road, the main irregular entry point between the US and Canada, is on their soil, they beared a disproportionate responsibility towards asylum seekers within Canada. If it may be true that Quebec used to bear an important part of the “burden” of asylum seekers in Canada, the mere repeal of the TSCA was a valid option; expanding it and closing Roxham Road cannot be the right solution. 

In any case, the number of entries has to be nuanced; in 2022, only 40,000 persons have entered Canada through Roxham Road. In comparison, on the American continent, approximately 340,000 asylum seekers present themselves on the southern border of the United States each year. Brazil and Costa Rica have received more than 200,000 claims each in 2022, and Peru 537,000. There are currently, according to the UNHCR, 4.9 million asylum seekers worldwide.

Be it as it may, my aim here is not to focus on the federal disputes between Quebec and the rest of Canada regarding migration. Rather, I now wish to briefly explore what the massive popular and political mobilization against Roxham Road in the past few months tells us about the global perception of migrants. Indeed, mistrust towards migrants, refugees, and asylum seekers, and a tendency to border closure is not unique to Canada. New border walls are built every year in the hope of preventing migration; from six fences at the fall of the Berlin wall, this number has grown to somewhere between seventy and eighty, most of them erected after the turn of the millennium. This is without mentioning the various externalization practices of States, especially Western States, such as pushback, non-rescue of migrants at sea, offshore detention, abroad processing, etc. Economic, social, political, cultural and security considerations motivate such practices. Canada is no exception. But there is also, underlying these initiatives, a fundamental mistrust of humankind towards the «other», the «stranger», no matter how they have been defined throughout history. 

More specifically, this strong tendency of fear towards the «other», the «stranger», has been reinforced after 9/11, through frequent equations between the “migrant” and the “terrorist”, even more so between the “refugee” and the “terrorist”. This has been vehiculated by populist parties and movements, by media, but also through international legal instruments (see, for example, UN Security Council Resolution 1373, para 2(c) and  3(f) and the 2006 UN Global Counter-Terrorism Strategy adopted by the General Assembly, para 2 and 7 of the second pillar (similar provisions still figure is the latest updated version of the UN Global Counter-Terrorism Strategy of 2021, see para. 32 and 38)). Yet the amalgam of terrorism with asylum seekers or refugees has never been supported by scientific data. Indeed, it cannot be demonstrated that the welcoming of refugees or asylum seekers puts a country at higher security risks, even in the case of massive displacements (which was not the case through the Roxham Road in Canada). Indeed, the sole correlation that has been established between refugees and terrorism is the increase of hate crimes by homegrown right-wing movements or individuals towards migrants in countries that welcome a high number of migrants.

Indeed, I find it very shocking that Quebec and Canada respectively pushed towards and adopted measures leading to the closure of Roxham Road. This obeys the popular favour, but counters all logic, where there should be a public responsibility to educate and inform the population. Such a political decision not only goes counter to reasonable thinking (let’s not forget, if it needs to be added, that Canada is under a severe labour shortage, with more than one million vacant positions in Canada, this currently being the most severe challenge for businesses in the country) but contradicts also the most elementary considerations of humanity. It must be kept in mind, indeed, that contrarily to the widespread belief, asylum seekers who used to cross through Roxham Road were not coming for vacations nor to benefit from our public services, but were fleeing for their lives, security, liberty and most fundamental human rights, leaving everything they love, as well as friends and part of their families behind. This was everything but an easy journey, and, even for those who were to be granted asylum, it was very far from being finished when they entered Canada.

Emerging Leaders Advisory Board of Human Rights First

/ Stephanie Farrior / Leave a comment

Announcement for young people passionate about using their creativity, knowledge and skills to promote and protect human rights:

The Emerging Leaders Advisory Board (ELAB) of the New York-based NGO Human Rights First is recruiting new members to join them. “Human Rights First recognizes the imperative to fully integrate talented young professionals at all levels of the organization, applying fresh ideas to hold oppressors accountable and free people from injustice.” Launched in late 2022, ELAB taps the creativity, energy, experiences, skills and social media savvy of young people to inform, support and advance the work of Human Rights First.   

To apply to be a member of the advisory board, click here.

Question: Do I have to live in New York to be a member of the Emerging Leaders Advisory Board of Human Rights First?

Answer: No. ELAB currently has board members based across the globe. All of the board meetings are held virtually. We do hold in-person events in NY/DC in which Advisory Board members may participate, but attending them is not a requirement for serving on the board.

Question: What is the role of Emerging Leaders Advisory Board members? What is expected of a member if appointed to ELAB?

Emerging Leaders Advisory Board members are expected to attend bi-monthly virtual meetings and support ELAB with its various initiatives. This may include, but is not limited to, contributing to ELAB’s blog, helping to plan events, and promoting our events and initiatives on their social media pages. They are also expected to serve on one of our three committees, which highlight our core competencies and streamline our priority initiatives: Advocacy; Fundraising; and Diversity, Equity, and Inclusion (D.E.I.).  Each committee hosts its own meetings, virtually, at the discretion of the committee chair. These typically occur bi-monthly. Committee overviews:

Advocacy Committee 

In November 2022, ELAB published an introductory blog post outlining the importance of young leaders and how our board upholds that history. In 2023, we continue to use our voices to publish op-eds on Human Rights First’s site to further educate audiences on the human rights issues that show up in our various lives. We encourage members across our committees to submit proposals for topics, and we will be publishing these op-eds during the year.

Fundraising Committee 

ELAB’s Fundraising Committee connects with new generations of donors, highlighting the work of Human Rights First through in-person events and online media campaigns. We launched our first individual fundraising drive on Human Rights Day (December 10), shortly after ELAB was established.

DEI Committee 

ELAB’s Diversity, Equity, & Inclusion Committee is currently spearheading recruitment to the Advisory Board. The committee is also actively engaged in planning events. A recent example is our Women’s History Month event, which took place in New York City on March 28, 2023. The committee is also collaborating with Human Rights First in drafting several protocols and initiatives to ensure diversity, equity, and inclusion in all aspects of our operations.

‘It is terrible to be alone’ and the (dis)remembered obligation

/ Sarah M Field / Leave a comment

Like Seamus Heaney’s republic of conscience international human rights law is wrought from ‘tears’ we wept when it became clear what we were capable of and what was at stake. Not solitude, as Hannah Arendt explains, but loneliness or ‘not belonging to the world at all‘.

contrarian suggestions

Though its root source resonates in our bones, the law’s words do not yield their intent easily. Like art, it seems to be: 

For in my experience, seemingly everywhere, in the global north and south, its meaning, is not merely screened by its legal bearings, but coloured by suggestion. It is susceptible to being revered as a referent of Justice herself or immutable law. Or conversely dismissed as a philosophic or legal abstraction. To being narrowed in scope and reduced in complexity. To being disregarded as law, parried as an import and censured as unnecessary or ineffective. So its meaning becomes blurred, leaving space for more threatening suggestions to gather affective and effective power. 

Continue reading →

Statement by Afghanistan’s Women Protester Movements Coalition re Taliban ban on women workers at UN offices

/ Stephanie Farrior / Leave a comment

Afghanistan’s Women Protester Movements Coalition
Press Statement
5 April 2023

The Taliban’s ban on women’s employment at the United Nations offices was foreseeable. The Taliban have made women’s right to work and education a tool for their political bargaining with the international community. They don’t believe in the participation of women in public life. They seek to systematically remove women from public spaces and have issued more than 40 decrees aimed at oppressing women since their return to power.

In December 2022, when the Taliban banned women’s employment in NGOs, women protesters expected international aid agencies to have a unified approach in protesting the Taliban’s restrictions on women’s employment and not continue their activities in Afghanistan without female employees. Contrary to our expectations, once again international aid agencies, including the United Nations, negotiated an agreement with the Taliban which allowed women to continue their work in limited sectors.

Such settlements and the international community’s unconditional engagement with the Taliban have emboldened them. The lack of unified and strong action in response to the Taliban’s continued attacks on the rights of women has led to the Taliban continuing their attacks with impunity.

Only the Taliban are responsible for starving 28 million Afghans who rely on humanitarian aid. By banning women’s employment, the Taliban take away the right to a decent life from the Afghan people and contribute to more poverty and hunger in Afghanistan. If this situation continues it will lead to a further crisis in the country.

In response to the Taliban’s recent ban on women’s employment in United Nations agencies, we, members of Afghanistan’s Women Protester Movements Coalition, once again call on the United Nations and other international aid agencies to:

  • Stop their operations in Afghanistan until women are allowed to work.
  • Abandon unconditional engagement with the Taliban and use all means and leverage to hold them accountable for their human rights violations.

The situation in Afghanistan is not only a humanitarian catastrophe but most importantly a human rights crisis. International aid agencies, including the United Nations, must demonstrate their commitment to human rights values in practice and place women’s human rights at the top of their priorities.

If the United Nations and other international aid agencies cannot firmly defend the rights of their female employees, we doubt their intentions to help the people of Afghanistan transition out of the current crisis.

Addressing Officer-Perpetrated Gender-Based Violence and Ending the “Blue Wall of Silence”

/ Tamar Ezer / Leave a comment

Despite the challenges of 2022, it closed with an important milestone for women’s rights. The European Court of Human Rights issues a groundbreaking decision, taking a bold stand to address officer-perpetrated gender-based violence (GBV).

Officer-perpetrated GBV is a major issue across the globe and yet so often invisible and rarely addressed. In many cases, it is met with a “blue wall of silence,” where police departments protect fellow officers from investigation. This completely undermines the state’s response to GBV and is particularly troubling since many states rely on law enforcement as frontline responders to GBV.

At the very least, the justice system should not be a perpetrator of abuse. We need the equivalent of the “first, do no harm” guiding principle we have for physicians.

The European Court of Human Rights acknowledged this in the Case of A & B v. Georgia. In this case, a woman experienced regular physical and psychological abuse by her former partner, a police officer. He threatened to kill her and her family, repeatedly “flaunted his service pistol,” referred to his “official status as a police officer and strong connections within the police,” and threated to bring false charges against her father and brother if she dared to report the violence.

Nonetheless, over the course of three years, the woman and her family made multiple calls  to the police and the woman filed a complaint with various state departments to stop the abuse. However, officers called to investigate interviewed the woman while her former partner was present, mocking and threatening her, and they left together in the same car. Even worse: officers told the woman that “wife-beating was commonplace” and of “not much importance”; and that she should not contact them in the future “without a valid reason or face being fined for wasting police time as they were busy with other, more serious matters.”

In 2014, the former partner tragically shot and killed the woman. Her mother and son brought a case that went before the European Court of Human Rights.

Our Human Rights Clinic at the University of Miami School of Law had the opportunity to collaborate with the European Human Rights Advocacy Center (EHRAC) on this case. We filed an intervention, along with partners, arguing for heightened state responsibility in cases of officer-perpetrated GBV. Officers are uniquely positioned to use their state authority, training, and access to weapons and resources to facilitate abuse in their relationship. Moreover, heightened vigilance by the state is required to prevent impunity and safeguard the justice system’s integrity.

Human rights law has already recognized that officer influence can facilitate GBV in the context of detention and custody. We argued that this also pertains to officers committing private acts of violence within their relationship, which also leverage their official positions. Moreover, human rights law recognizes officers’ particular role and authority with regards to GBV, mandating trainings on professionalism and sensitivity.

: Addressing Officer-Perpetrated Gender-Based Violence and Ending the “Blue Wall of Silence”

The European Court of Human Rights agreed. The Court stated that it “expects Member States to be all the more stringent when investigating . . . their own law-enforcement officers for the commission of serious crimes, including domestic violence and violence against women in general, than they are with ordinary offenders, because what is at stake is not only the issue of the individual criminal-law liability of the perpetrators but also the State’s duty to combat any sense of impunity felt by the offenders by virtue of their very office, and maintain public confidence in and respect for the law-enforcement system.” The Court further referred to a “heightened duty to tackle prejudice-motivated crimes.”

The Court awarded damages to the plaintiffs. While it recognized the need for policy measures, it said it was up to the State of Georgia, supervised by the Committee of Ministers, to determine “the exact means to address gaps and “the discriminatory passivity” of law enforcement.

Our Human Rights Clinic has called for:

  • A “zero-tolerance policy” for GBV perpetrated by officers
  • Internal structures in police departments that:
    • Prevent the hiring of individuals with a history of GBV
    • Monitor current officers for signs of abuse
    • Handle investigation against fellow officers, including the removal of weapons during the investigation
  • Enhanced data collection on officer-perpetrated GBV
  • Online or anonymous reporting to better protect survivor safety
  • Programs supporting officer mental health, including stress managements and confidential crisis counseling.

We have also expanded our analysis of law enforcement responses to GBV in a human rights framework report and case studies focused on Canada and Brazil. The report and case studies address accountability for officer-perpetrated GBV, trauma-informed interactions with survivors, effective investigation of GBV reports, and intersecting discrimination.

As we celebrate another International Women’s Day, let’s take a step closer to addressing GBV, ending state impunity, and ensuring a safe existence for all.

Tuesday Nov. 15: Defending Artistic Freedom After the Attack on Salman Rushdie

/ Stephanie Farrior / Leave a comment

Defending Artistic Freedom After the Attack on Salman Rushdie

When: Tuesday, November 15, 4:00 PM – 5:30 PM, Eastern Time (USA)

Where:  Palmer Commons on the University of Michigan campus, a 15 minute walk from the law school (Palmer Commons address: 100 Washtenaw Avenue, Ann Arbor, MI 48109-2218 Palmer Commons | Welcome to Palmer Commons (umich.edu))

Link to event page with link for zoom registration: https://ii.umich.edu/humanrights/news-events/all-events.detail.html/98508-21796731.html. 

More about the event: 

On August 12, acclaimed writer Salman Rushdie was to address a crowd at the Chautauqua Institution about safe havens for at-risk writers, when he was stabbed multiple times. While Mr. Rushdie thankfully survived, he experienced severe injuries, after facing years of threats since the 1989 fatwa against his book “The Satanic Verses” by Iran’s then-Supreme Leader Ayatollah Khomeini. What will be the impact of this brutal act of violence against a writer on efforts to defend the human right to freedom of artistic expression around the world? What kinds of threats are artists facing globally as they practice their crafts – practice essential to the cultural rights of all? What kind of self-censorship do these pressures foster, especially around controversial issues such as religion? What strategies can cultural rights defenders use to support artists like Salman Rushdie, and all the Rushdies around the world?

Moderated by: Karima Bennoune, Lewis M. Simes Professor of Law, Michigan Law School

Panelists:

Julie Trébault, Director, Artists at Risk Connection
Julie Trébault is the director of the Artists at Risk Connection (ARC), a project of PEN America that aims to safeguard the right to artistic freedom by connecting threatened artists to support, building a global network of resources for artists at risk, and forging ties between arts and human rights organizations. She has nearly two decades of experience in international arts programming and network-building, including at the Museum of the City of New York, the Center for Architecture, the National Museum of Ethnology in The Netherlands, and the Musée du quai Branly in Paris.


Salil Tripathi, Board member, PEN International, and former chair, PEN International’s Writers in Prison Committee

Salil Tripathi was born in Bombay and lives in New York. He chaired PEN International’s Writers in Prison Committee from 2015 to 2021 and is a member of its board. Between 2009 and 2013, he was on the board of English PEN. His honors include the Red Ink Award from the Mumbai Press Club in 2015 for human rights journalism and the third prize at the Bastiat Awards for Journalism in New York in 2011, among others. His journalism has appeared in major publications worldwide and he has been a correspondent in India and Southeast Asia. Offence: The Hindu Case, about the rise of Hindu nationalism and its implications on free expression, was his first book. His other books include The Colonel Who Would Not Repent: The Bangladesh War and its Unquiet Legacy (Aleph, 2014, Yale, 2016), and Detours: Songs of the Open Road, (Tranquebar, 2015). His most recent work is For In Your Tongue I Cannot Fit: Encounters with Prison, which he co-edited with the artist Shilpa Gupta. He is currently writing a book about Gujaratis, which Aleph will publish. Salil studied at the New Era School and Sydenham College in Bombay, and has an MBA from the Tuck School at Dartmouth College in the United States.


Ahmed Naji, writer, journalist, documentary filmmaker, Fellow at the Black Mountain Institute, University of Nevada, Las Vegas

Ahmed Naji is a writer, journalist, documentary filmmaker, and criminal. His Using Life (2014) made him the only writer in Egyptian history to have been sent to prison for offending public morality. (Mr. Rushdie corresponded with him while he was imprisoned.) His book Rotten Evidence chronicles his time in prison, which is due out in September (2023) with McSweeney’s. Other published novels in Arabic are Tigers, Uninvited (2020), and The happy end (2022) Naji has won several prizes, including a Dubai Press Club Award, a PEN/Barbey Freedom to Write Award, and an Open Eye Award. He is currently a fellow at the Black Mountain Institute in UNLV. He now lives in exile in Las Vegas, where his writing continues to delight and provoke. For more about his work: https://ahmednaji.net/

Peace and Solidarity: Dilemmas of the Evolution of International Law in An Age of Decoupling

/ Cecilia Marcela Bailliet / Leave a comment

I presented my research to the North South Webinar Series, based on my previous Research Handbook on International Law and Peace (Edward Elgar 2019) and my forthcoming Research Handbook on International Law and Solidarity (Edward Elgar 2023). I will discuss the normative evolution of these third generation rights, the link to the UN Report Our Common Agenda, solidarity paradoxes in an age of decoupling and recoupling, as well as securitized peace and solidarity. There is a role for peace and solidarity in the context of transitional justice, and hence relevant to intractable conflicts like Palestine in which peace and solidarity civic society spaces are under threat. I argue for a pro homine peace and solidarity that is gendered, intergenerational, and inclusive. Peace and Solidarity are both means and ends as they call for pacific settlement of disputes, recognition of the right to freedom of expression (including digital access) and equitable participation and benefit in the common heritage of mankind. The lecture is available here

Asylum for Conscientious Objectors, Deserters, and Draft Evaders

/ Cecilia Marcela Bailliet / Leave a comment

There has been some confusion regarding the right of Russian conscientious objectors, deserters, and draft evaders to apply for asylum. Conscientious objectors may object to the illegality of the war (jus ad bellum), the commission of war crimes (jus in bello), as well as corruption and human rights violations in the context of war. Deserters may develop a conscientious objection after deployment. Draft evaders may have a conscientious objection or may be subject to discriminatory conscription (on account of ethnicty or other identity) or may be subject to excessive or arbitray punishment (such as excessive imprisonment or other penalty). UNHCR has Guidelines on Asylum and Military Service, they are available here

Launching a Global Campaign Against Gender Apartheid in Afghanistan

/ Stephanie Farrior / Leave a comment

Three items to share on this, the one-year anniversary of the Taliban takeover of Afghanistan:

Register and attend what promises to be a riveting discussion on Global Strategies for Countering Gender Apartheid in Afghanistan on Friday 19 August 2022, with courageous Afghan women human rights defenders like Shaharzad Akbar and Zarqa Yaftali and international partners like the University of Michigan’s Professor Karima Bennoune and Human Rights Watch’s Heather Barr. Register here.

View filmmaker Ramita Navai’s documentary Afghanistan Undercover, about which noted interviewer Terry Gross of the program Fresh Air remarked in her interview with Navai: “I feel like the world isn’t watching as carefully anymore. And your documentary was a wake-up call to me. . . . things have gotten so dire for women there.”

Read Professor Bennoune’s powerful analysis The Best Way to Mark the Anniversary of Taliban Takeover? Launch a Global Campaign Against Gender Apartheid in Afghanistan, which explains why “it is critical to commit to a more effective and principled global response, and to do so by recognizing this grave set of abuses for exactly what it is: gender apartheid.”

Time to act, UN Human Rights Committee

/ Stephanie Farrior / 1 Comment

Afghanistan, which ratified the ICCPR in 1983, was last reviewed by the UN Human Rights Committee in 1995 – and it was a truncated review at that. The Afghan head of delegation was unable to be present due to delays en route, so the Chair suspended the review that had barely begun, saying that consideration of the report would be resumed at a subsequent meeting.

No subsequent review has ever taken place. Instead, there has been one postponement after another, as shown by the timeline below.  Why the neglect by the premier human rights treaty body authorized to monitor compliance with civil and political rights?  

Prompted by concerns we heard from Afghan women human rights defenders and Afghan human rights defenders more broadly, three of us wrote to the Human Rights Committee last week urging them to schedule a review of Afghanistan without further delay: Felice Gaer, Former Vice Chairperson and member, Committee against Torture, and Director, Jacob Blaustein Institute for the Advancement of Human Rights; Karima Bennoune, Professor of Law, University of Michigan, and immediate past UN Special Rapporteur in the field of cultural rights; and yours truly, Stephanie Farrior, professor of international law for 30 years and past Legal Director of Amnesty International. We await a response. The Committee has reportedly already set its calendar of reviews for the next several years. If a review of Afghanistan is not already scheduled, it should be, and without yet more delay.  

Afghanistan has seen significant political turmoil in the years since that partial Committee review held in 1995 – from the Taliban, to the Karzai government after the US invasion and now, back to the Taliban, which is not recognized by the United Nations as the official representative of Afghanistan. This has not prevented other UN human rights treaty bodies from holding a review of the implementation of their treaty in Afghanistan (see below).

The Human Rights Committee did schedule review of Afghanistan for March 2000, but the government requested and received a postponement.  

The review was next scheduled to take place in October 2001, and in the preceding session in May, the Committee developed its “List of issues prior to reporting.” However, the events of 9/11 intervened, and the Committee decided “to postpone review of implementation of the Covenant in Afghanistan to a later and more favorable date.” A concern expressed in that meeting by the late Sir Nigel Rodley and shared by other Committee members at the time was that their statement postponing the review “should not be interpreted in such a way as to suggest that the Committee will henceforth no longer consider the reports of States Parties in which an armed conflict is taking place.” Christine Chanet added that the presence of armed conflict does not only not prevent consideration of a state party, but it actually “adds to the concerns of the Committee.”

It was not until a decade later, in July 2011, that a review of Afghanistan was once again on the table, when the Human Rights Committee announced it would develop a “List of issues prior to reporting” at its July 2012 session.  It did indeed adopt a list of issues at that 2012 session, but in the ensuing ten years, no review of implementation of the Covenant in Afghanistan was ever scheduled or held.

Today, the human rights situation in Afghanistan is dire. For women and girls, as a journalist quoted in Amnesty International’s recent report has stated, “it’s death in slow motion.” For some, it’s more than one can bear. According to UN News: “The situation for women is so desperate in Afghanistan that they are committing suicide at a rate of one or two every day, the Human Rights Council has heard.”

In light of the dire situation in Afghanistan, the Human Rights Committee could take action and schedule a long overdue review of the civil and political rights situation there. The Committee’s Rule of Procedure 70 allows for review of a state party in the absence of a report. In this case, the last report submitted by Afghanistan could be updated with the significant body of information documented by UNAMA, the UN Special Rapporteur on Afghanistan, and human rights NGOs.  In addition, Afghan human rights defenders are keen to submit shadow reports. They are also keen to see every human rights mechanism engaged to the extent possible, to keep up international attention and pressure.

In a situation where the de facto entity in control of a state’s territory is not a recognized government, the Committee could nonetheless follow normal procedures and send an invitation to participate in a review to the office of the Permanent Mission of Afghanistan in New York. The UN-recognized (former) government officials could attend, present an oral (or written) report – or not. It should be noted that Rule of Procedure 68.2 allows for consideration of a report if the state party does not send a representative.   

The timeline below shows year after year after year of postponements of a review of Afghanistan by the Human Rights Committee. Other treaty bodies have engaged in periodic reviews of Afghanistan in the years when the Human Rights Committee was not scheduling a review, most recently the Committee against Torture in 2017-2018, and CEDAW in both 2016 and 2020.

It is time for the UN Human Rights Committee to re-engage, and schedule a review as soon as possible, given the critical situation there and the importance of continued international scrutiny. The record of neglect by the Human Rights Committee means that there has been no authoritative analysis of the implementation of the Covenant on Civil and Political Rights in Afghanistan for 27 years. The Committee should correct this situation promptly.  

October 1991: Afghanistan submitted 2nd periodic report to the UN Human Rights Committee. 

October 1995: Committee began review of the 2nd report, but soon suspended the review due to the absence of the head of delegation caused by travel delays. “The Chairman said that consideration of the report of Afghanistan would be resumed at a subsequent meeting,” and the Committee requested the Government of Afghanistan to submit information updating the report before 31 May 1996 for consideration at” its session in July 1996.  No additional information was received.

The next mention of Afghanistan in Summary Records after October 1995:

October 1999: The Committee invited Afghanistan to present its report at its March 2000 session. The State party asked for a postponement.

November 1999:  The Committee discussed and adopted a list of issues to be taken up in connection with the consideration of the second periodic report of Afghanistan.  Materials used in the preparation of the list included the report of the Special Rapporteur on the situation of human rights in Afghanistan and a report by Amnesty International on the situation of women in Afghanistan.

May 2001: The Committee decided to consider the situation of Afghanistan during its session in October/November 2001, applying Rule of Procedure 68.2, which allows for consideration of a report if the state does not send a representative.

October 2001: The Committee decided to postpone consideration of Afghanistan to a later date, “pending consolidation of the new Government.” “The Committee has very serious concerns regarding the implementation of the provisions of the Covenant in Afghanistan, particularly with regard to the situation of women in Afghanistan, public and extrajudicial executions, and religious intolerance. . . . Despite the fact that, with the current situation of armed conflict in Afghanistan, other serious concerns concerning the protection of the rights guaranteed by the Covenant have been added, the Committee considers that reviewing the report would not be productive in the current situation. [The Chairman] has therefore decided to postpone consideration of the report to a later and more favorable date for the purposes of article 40 of the Covenant.”

Continued postponements: In succeeding annual reports, the Committee duly recorded the previous postponements, but never scheduled a review:

A/58/40(Vol.I)    2002-2003

A/59/40(Vol.I)    2003-2004

A/60/40(Vol.I)    2004-2005

A/61/40(Vol.I)    2005-2006

A/62/40(Vol.I)    2006-2007

A/63/40(Vol.I)    2007-2008

A/64/40(Vol.I)    2008-2009

A/65/40(Vol.I)    2009-2010

A/66/40(Vol.I)    2010-2011

May 2011: “Afghanistan accepted the new optional procedure on focused reports based on replies to the list of issues prior to reporting. It is thus waiting for the Committee to adopt a list of issues prior to reporting.”

July 2011:  The Committee report notes: “The timetable for consideration of reports posted on the Committee website would . . . take account of the States parties for which a list of issues prior to reporting was to be adopted in July 2012, namely Afghanistan, Croatia, Israel, San Marino and New Zealand.”

July 2012:  The Committee adopted a list of issues prior to reporting on Afghanistan with a deadline of 31 October 2013 for its response. In the Committee’s July 2012 LOIPR includes the following  “Please provide any other information on measures taken to disseminate and implement the Committee’s previous recommendations (CCPR/C/AFG/CO/2), including any necessary statistical data.”

For those interested in seeing what those previous recommendations were: Per the UN Library Services, “despite the fact that document CCPR/C/AFG/Q/3 clearly mentions CCPR/C/AFG/CO/2, this document symbol is not recorded in any other source or index and according to the historical research above, the second report issued in 1992 was never fully considered – so no formal documented outcome must have been issued.”

Over the ten years that have passed since it adopted the list of issues, the Human Rights Committee has never reviewed implementation of the Covenant in Afghanistan.

2013-2014: The Annual Report notes the Committee’s adoption of a list of issues prior to reporting on Afghanistan with a deadline of 31 October 2013 for its response. “This report has still not been received.”

Note: The Human Rights Committee’s Rule of Procedure 70 allows for consideration of a State Party in the absence of a report.

2014-2019: The next five Annual Reports of the Human Rights Committee stop giving the prior history of postponed reviews, and only mention Afghanistan in the list of states that are 10 or more years overdue in submitting a report.

There is no further mention of Afghanistan in Annual Reports or Summary Records.