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Human Rights Council Holds Interactive Dialogue with the Special Rapporteur on the Promotion of Truth, Justice and Reparation, and Starts Dialogue with the Chair of the Expert Mechanism on the Right to Development

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Concludes Interactive Dialogue with the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights

The Human Rights Council this afternoon held an interactive dialogue with the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, and started an interactive dialogue with the Expert Mechanism on the Right to Development. The Council also concluded its interactive dialogue with the Special Rapporteur on unilateral coercive measures.

Fabian Salvioli, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, said he was presenting a thematic report on accountability: prosecuting and punishing gross violations of human rights and serious violations of international humanitarian law in transitional justice processes. He was also presenting a follow-up report on previous visits to Tunisia, Uruguay and Spain, and a second follow-up report on previous visits to Burundi, the United Kingdom and Sri Lanka. Due to the COVID-19 pandemic, he had had to postpone official country visits. He had resumed visits to six countries made by the mandate previously and prepared reports reviewing the status of implementation of the recommendations made.

In the discussion, some speakers saluted the role of the Special Rapporteur in fighting impunity and strengthening the rule of law; they agreed with his conclusion that the main scope of the duty of accountability that States had under transitional processes was the legal obligation to prosecute and punish serious violations. They valued the recommendations that focused on ensuring that serious human rights violations and violations of international humanitarian law did not go unpunished, guaranteeing the right to truth for victims and their families, access to justice and reparation, as well as guarantees of non-repetition, and they encouraged States to implement them.

Other speakers said the report made unfounded, ill-informed, baseless and presumptuous allegations and rejected these allegations. They urged the Special Rapporteur to exercise due diligence. They said that the replication or imposition of criminal models in the framework of transitional justice processes, without taking into account the national context, was not advisable. While it was important that countries undergoing transition processes respected the obligation to hold accountable those responsible for serious violations, the support of the international community should be disconnected from the political agenda of donors.

Speaking in the discussion were Argentina on behalf of a group of countries, European Union, Luxembourg on behalf of a group of countries, Estonia on behalf of a group of countries, Switzerland on behalf of a group of countries, Liechtenstein, Switzerland, France, Togo, Armenia, Ecuador, Egypt, Colombia, Iraq, Republic of Korea, Venezuela, Uruguay, Paraguay, United States, Russian Federation, India, Sri Lanka, Ireland, Peru, Malaysia, Nepal, Brazil, Belgium, China, Croatia, Bolivia, Libya, Iran, Pakistan, Sudan, Ukraine, Cuba, Philippines, Chile, Azerbaijan, Mali, Botswana, Cameroon, Maldives, Uganda, Gambia, South Sudan, Chad, Indonesia and Tunisia.

The following national human rights institution took the floor: Northern Ireland Human Rights Commission. The following non-governmental organizations also took the floor: Amnesty International, Advocates for Human Rights, *Fundación Abba Colombia, *Families of Victims of Involuntary Disappearance, *Centro de Estudios Legales y Sociales, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, *International Commission of Jurists, Federation for Women and Family Planning, International Movement Against All Forms of Discrimination and Racism, and Peace Brigades International.

The Council then started an interactive dialogue with the Chair-Rapporteur of the Expert Mechanism on the Right to Development.

Klentiana Mahmutaj, Chair of the Expert Mechanism on the Right to Development, said the mandate of the Expert Mechanism was to provide the Council with thematic expertise in searching for, identifying and sharing best practices on the right to development worldwide. She presented their second annual report as well as their first thematic study on “operationalising the right to development in achieving the Sustainable Development Goals”. The study drew attention to the urgent need to move beyond rhetoric and to strive for greater acceptance, operationalisation and realisation of the right to development across all three levels of obligations of States.

In the discussion, some speakers said that while they had not supported the creation of the Expert Mechanism, a third mechanism focused on the right to development, they had still engaged in the discussions conducted in the second and third session of the Expert Mechanism last autumn and earlier this year. They recognised that divergent views on the right to development persisted. They further reiterated their long-standing position that any discussion on the right to development must be grounded in basic principles such as the indivisibility and interdependence of all human rights; the multidimensional nature of development strategies; the fact that individuals were the central actors and drivers of the development process; and the primary responsibility of States, acting individually and collectively, for the full realisation of the right to development and ensuring that their citizens could benefit.

Other speakers emphasised that the right to development was a universal and inalienable human right. At present, the global realisation of the right to development was far below expectation. They agreed that there was a need to go beyond rhetoric in honouring commitments under the 2030 Sustainable Development Agenda and believed that the operationalisation of the right to development was essential both for human development and the universal enjoyment of civil, political, economic, social and cultural rights. They reaffirmed the importance of the promotion, protection and enjoyment of all human rights in a fair and equal manner, and with the same emphasis everywhere.

Speaking in the discussion were European Union, Pakistan on behalf of the Organization of Islamic Conference, China on behalf of a group of countries, Djibouti, State of Palestine, Indonesia, Egypt, Iraq, Venezuela, Angola, Kenya, Cuba, Russian Federation, India, Sri Lanka, Malaysia, China, United Nations Development Programme, Mauritania and Iran.

At the end of the meeting, Japan, Sri Lanka, Tunisia, Azerbaijan, Republic of Korea and Armenia spoke in right of reply.

At the beginning of the meeting, the Council concluded its interactive dialogue with Alena Douhan, the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights.

The following non-governmental organizations took the floor: Partners for Transparency, and Association pour l'Intégration et le Développement Durable au Burundi.

The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council’s forty-eighth regular session can be found here.

The Council will resume its work at 10 a.m. on Friday, 17 September to continue the interactive dialogue with the Expert Mechanism on the Right to Development, followed by an interactive dialogue with the Special Rapporteur on contemporary forms of slavery, including its causes and consequences. It will then start an interactive dialogue on the analytical report of the High Commissioner on the current state of play of the mainstreaming of the human rights of women and girls in conflict and post-conflict situations.

Interactive Dialogue with the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights

The interactive dialogue with Alena Douhan, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, started on Wednesday, 15 September, and continued on Thursday, 16 September, in the morning meeting. A summary can be found here and here.

Discussion

Speakers said that unilateral coercive measures undermined the economic and social rights of citizens, such as the right to food, medical care and social services, and urged the international community to provide urgent medical care to citizens affected by conflict.

Concluding Remarks

ALENA DOUHAN, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, said that unfortunately, unilateral coercive measures had become a part of today’s reality, despite the fact that they were contradicted international law. As a result, the world was facing new challenges like secondary sanctions which ended up causing massive human rights violations of the right to life, the right to health and the right to food. Until now, unfortunately, countries were not involved with the mandate because it was seen to be politically motivated, although that was definitely not the case. Her approach to the mandate was totally legalistic. Due to this initial perception, her communications and reports were not read very carefully and her legal argumentation was not assessed properly. Because of this perception of being politically motivated, other mandate holders preferred not to deal or be associated with unilateral coercive measures. She regretted having been repeatedly accused of being politically motivated while she actually met government interlocutors as well as all opposition leaders and groups, as well as civil society. Each and every single fact had been very carefully assessed and reflected in her report. It was unfortunate that some institutions today were still calling for unilateral sanctions. This was inadmissible as these sanctions were recognised to be illegal by numerous resolutions of the United Nations General Assembly. The Special Rapporteur concluded with a plea for more support, not only political but also in terms of resources as the scope of sanctions was expanding.

Interactive Dialogue with the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence

Presentation of Reports

FABIAN SALVIOLI, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, said he was presenting a thematic report on accountability: prosecuting and punishing gross violations of human rights and serious violations of international humanitarian law in transitional justice processes. He was also presenting a follow-up report on previous visits to Tunisia, Uruguay and Spain, and a follow-up report on previous visits to Burundi, United Kingdom and Sri Lanka. Due to the COVID-19 pandemic, he had had to postpone official country visits. He had resumed visits to six countries made by the mandate previously and prepared two reports reviewing the status of implementation of the recommendations made.

Concerning his thematic report, despite progress made since the end of World War II, there were numerous obstacles to the pursuit of justice. “Impunity hides behind arguments that are unacceptable” he said, adding that accountability was a legal obligation of States, based on international human rights law, and that, therefore, neither political will nor State reason could be invoked to breach it. The report documented valuable examples of good practice. At the legislative level, some countries had adopted norms that adequately criminalised these unacceptable crimes. However, the approaches of States in this area had not been uniform. The report therefore identified insufficient actions or omissions, which resulted in scenarios of total or partial impunity.

Moving to his country visits, the Special Rapporteur recognised some progress made in Tunisia to bring coherence to the transitional justice system. However, he mentioned significant legislative gaps and procedural obstacles that impeded effective criminal accountability for serious human rights violations committed.

In Uruguay, he noted progress in the strengthening of the independence of the judiciary, as well as the specialised prosecutor's office to prosecute crimes against humanity. However, he regretted the insufficient progress in the search for missing persons and the serious legal and de facto obstacles to accountability.

In Spain, problems identified in the visit report persisted, limiting victims' rights to truth, justice, comprehensive reparation, and guarantees of non-repetition and memory, but he noticed progress in the recent creation of the Secretary of State for Democratic Memory and the increase in the budget for exhuming and identifying victims. In Burundi, there had been progress in exhuming victims' remains for identification, but he regretted the lack of progress on other aspects of the transitional justice agenda, recommended in the visit report.

In the United Kingdom, he recognised the frameworks set out in the 2014 Stortmont Hause Agreement to address the legacy of the period of violence commonly known as "the Troubles" but he regretted the lack of progress on this issue, and the Government's recently announced plans to establish a new "legacy package" that hindered both accountability for events of the conflict and investigative powers. In Sri Lanka, he explained that the last 18 months showed a profound deterioration of the human rights situation, and he deeply regretted the lack of implementation of the recommendations made in the report.

Discussion

Speakers saluted the role of the Special Rapporteur in fighting impunity and strengthening the rule of law; they agreed with his conclusion that the main scope of the duty of accountability that States had under transitional processes was the legal obligation to prosecute and punish serious violations. They valued the Special Rapporteur’s recommendations that focused on ensuring that serious human rights violations and violations of international humanitarian law did not go unpunished, guaranteeing the right to truth for victims and their families, access to justice and reparation, as well as guarantees of non-repetition, and they encouraged States to implement them. Some speakers saluted the role of the Special Rapporteur in fighting impunity and strengthening the rule of law. They believed that holding perpetrators accountable was an essential part of transitional justice processes as a means to recognise victims as rights holders, to contribute to social reconciliation and to break spirals of violence and revenge. In this context, it was vital to safeguard the independence and impartiality of the judiciary, to generate political will to hold perpetrators accountable and to provide for effective domestic legislation. Additionally, they reiterated the importance of a victim-centred approach in accountability processes.

Some speakers highlighted that the promotion of truth, justice, reparation and guarantees of non-recurrence was not only central in combatting impunity, but was also essential to preventing the recurrence of genocide, war crimes, crimes against humanity and ethnic cleansing. Failure to close the impunity gap emboldened those responsible to continue to commit atrocities. Speakers called on all Member States to utilise the information produced by bodies on the promotion of truth, justice, reparation and guarantees of non-recurrence to adopt a forward-looking strategy and take measures to prevent renewed escalation. Some speakers said that the accountability of perpetrators of human rights violations was an essential element of every transitional justice process and that a number of international instruments and mechanisms had long recognised the importance of accountability, both in providing justice to victims and in preventing further violations from being committed. They commended the Special Rapporteur for outlining the various models of accountability and several good practices related to the Rome Statute of the International Criminal Court.

Expressing different views, some speakers did not agree with the information contained in the report and stated that the commitment to the path of transitional justice as the best way to achieve national reconciliation could not come at the expense of accountability. The report made unfounded, ill-informed, baseless and presumptuous allegations and a number of speakers rejected these allegations and urged the Special Rapporteur to exercise due diligence. Others emphasised that the replication or imposition of criminal models in the framework of transitional justice processes, without taking into account the national context, was not advisable. Each country and each situation were different, they emphasised, and should be treated differently, with full respect for the sovereignty, integrity and internal legislation of States. While it was important that countries undergoing transition processes respected the obligation to hold accountable those responsible for serious violations, the support of the international community should be disconnected from the political agenda of donors. Some speakers said that many Western countries had committed serious human rights violations, such as genocide, for which justice had never been served. Other speakers, noting that in his report the Special Rapporteur covered the period after the Second World War through the prism of the evolution of accountability mechanisms, regretted that he ignored a key milestone such as the establishment of the Nuremberg Tribunal, which condemned the Nazis. Meanwhile, they added, the problem of neo-Nazism continued to be acute. They therefore called on Mr. Salvioli to keep an eye on this topic, especially when it came to the glorification of the Nazis and their accomplices.

Concluding Remarks

FABIAN SALVIOLI, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, said the work of non-governmental organizations was fundamental, and without them his work would be impossible. On the question of how to improve the capacity of truth commissions, the Special Rapporteur said that this was an essential issue. On many occasions, States wanted to quickly wrap up legal processes and gave too little weight to truth commissions, in terms of time and resources. He specifically insisted on technical capacity, as this meant drawing in people with strong technical profiles, as it was not easy for victims to talk, and that it was necessary to be willing to go beyond capital cities. He also highlighted that the issue of human rights violations committed by non-state agents was very important and that next year he would be dealing with a report on that issue. In this current report, he emphasised that victims should not be forced to choose between truth and reparation, as processes of reconciliation needed to be properly balanced. Mr. Salvioli concluded that it was never necessary for those processes to involve excusing the persons who committed the act, as this was an individual choice, and never the State’s responsibility.

Interactive Dialogue with the Expert Mechanism on the Right to Development

Presentation of Report

KLENTIANA MAHMUTAJ, Chair of the Expert Mechanism on the Right to Development, said the mandate of the Expert Mechanism was to provide the Council with thematic expertise in searching for, identifying and sharing best practices on the right to development worldwide. She presented the Expert Mechanism’s second annual report as well as their first thematic study on “operationalising the right to development in achieving the Sustainable Development Goals”. The study drew attention to the urgent need to move beyond rhetoric and to strive for greater acceptance, operationalisation and realisation of the right to development across all three levels of obligations of States. These obligations included States acting collectively in global and regional partnerships; States acting individually as they adopted and implemented policies that affected persons not strictly within their jurisdiction; and States acting individually as they formulated national development policies and programmes affecting persons within their jurisdiction. She further stressed the urgent need for States to discharge their duty to cooperate in creating the enabling environment for realising the Sustainable Development Goals. Failure in meeting this obligation would hamper the achievement of many targets of the 2030 Agenda.

Ms. Mahmutaj concluded her presentation with two recommendations that the Expert Mechanism wished to bring to the attention of the Council for its consideration and approval. The first was that the Council enable it to webcast its public sessions and use international sign interpretation and real-time captioning in English. The second was that the Council enable non-governmental organizations beyond those with consultative status with the Economic and Social Council to participate in the public sessions of the Expert Mechanism.

Discussion

Some speakers said they had not supported the creation of the Expert Mechanism, a third mechanism focused on the right to development, but that they had still engaged in the discussions conducted in the second and third session of the Mechanism last autumn and earlier this year. They recognised that divergent views on the right to development persisted. They further reiterated their long-standing position that any discussion on the right to development must be grounded in basic principles such the indivisibility and interdependence of all human rights; the multidimensional nature of development strategies; the fact that individuals were the central actors and drivers of the development process; and the primary responsibility of States, acting individually and collectively, for the full realisation of the right to development and ensuring that their citizens could benefit.

Other speakers emphasised that the right to development was a universal and inalienable human right. At present, the global realisation of the right to development was far below expectation. The COVID-19 pandemic had severely impacted economic and social development and peoples’ livelihoods in all countries, developing countries in particular, as well as exacerbated inequality and brought new challenges to the realisation of the right to development. In the face of these challenges, people-centred development should be pursued and peoples’ aspirations for a better life realised. Priority should be given to development, to step up efforts on poverty eradication and inequality elimination and guarantee peoples’ livelihoods, so as to ensure that development gains were enjoyed on a larger scale and in a more equitable way by all members of the society.

Some speakers agreed that there was a need to go beyond rhetoric in honouring commitments under the 2030 Sustainable Development Agenda and believed that the operationalisation of the right to development was essential both for human development and the universal enjoyment of civil, political, economic, social and cultural rights. They reaffirmed the importance of the promotion, protection and enjoyment of all human rights in a fair and equal manner, and with the same emphasis everywhere. They further agreed with the Expert Mechanism that the COVID-19 pandemic had “brought the entire world to a grinding halt”, exacerbating the existing inequalities and eroding development gains. The growing gap between long-standing development needs and the dwindling level of financing means necessitated the revival and demonstration of greater political commitment by all States, global institutions and the private sector. They echoed the Expert Mechanism’s call to work collectively and overcome obstacles that were impeding progress in achieving the Sustainable Development Goals both through national efforts as well as enhanced international cooperation.