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A Practical Guide to Using International Human Rights and Criminal Law Procedures

Connie de la Vega and Alen Mirza

This book is a practical, experience-based guide for advocates seeking remedies for human rights violations through the use of international institutions. Since 1948, when the United Nations adopted the Universal Declaration of Human Rights, mechanisms for addressing human rights violations have multiplied to include UN Charter based bodies, treaty-based organizations including the international criminal court, and regional institutions. Each mechanism has its own admissibility requirements: accreditation, timeliness of claims, and exhaustion of remedies. For practitioners, the maze of rules and institutions can be difficult to navigate. This book offers step-by-step approaches for maximizing the institutions’ intended effect–promotion of human rights at all levels.
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Introduction

Connie de la Vega and Alen Mirza

Since the adoption of the Universal Declaration of Human Rights in 1948 by the United Nations,1 a number of treaties establishing substantive standards for human rights protection have been promulgated by the international community as well as procedures for promoting the standards and addressing violations both under the United Nations bodies as well as by bodies established by human rights treaties.2 These developments have taken place at the regional level as well.

These advances have included the adoption of standards and procedures by the bodies established under the United Nations Charter such as the Human Rights Council, the Commission on the Status of Women (CSW), the Economic and Social Council (ECOSOC), and the General Assembly, as well as regional bodies such as the Organization of American States (OAS), the Council of Europe, and the African Union. The standards and procedures adopted by the Charter-based bodies apply to all nations in the world. Under the United Nations system, treaties have also been adopted that have created enforcement bodies to oversee compliance of those treaties by States who have become parties. Regional bodies have likewise adopted universal standards and procedures applicable to all members, as well as treaties that apply to those countries who become party to them.

In addition, the global community has taken significant steps to impose criminal responsibility for international atrocities. The Nuremburg and Tokyo tribunals of World War II were followed by international criminal tribunals dedicated to conflicts in the Former Yugoslavia and Rwanda, among others. These institutions established accurate historical records, developed the law and imposed accountability on scores of political and military actors. Time will tell the extent to which the current pre-eminent tribunal, the International Criminal Court (ICC), will live up to its promises of accountability and justice for victims.

Since the beginning of the United Nations, nongovernmental organizations (NGOs) have been involved in the promotion and protection of human rights at the international, regional, and national level initially in the development of standards and procedures and then in the use of the procedures to address violations of human rights. NGOs can have expertise both in substantive and procedural standards as well as information about victims of human rights violations. They often are the sources of information regarding violations of human rights for both individuals as well as groups.

With the growth of international and regional human rights standards and procedures, the options available for addressing human rights issues and violations has become multi-faceted and complex. The United Nations, treaty, and regional bodies have a multitude of methods for addressing human rights violations, which can vary from filing complaints to participation in meetings that result in resolutions, treaty drafts, and other outcome documents. Bodies that provide individual petition procedures have admissibility criteria, but they are not always the same. Further, the remedies they provide can vary. This can become overwhelming for NGOs trying to determine what procedures to use to seek remedies for victims they represent. The purpose of this book is to make this determination easier by including an overview of the international and regional procedures for addressing international human rights violations, a summary of the admissibility requirements for filing claims and guidelines for participating in the various bodies or using the procedures, including accreditation requirements for NGOs.

Chapter 1 of the book will start by discussing the United Nations Charter-based bodies which will focus on the Human Rights Council, the Commission on the Status of Women, and the Permanent Forum on Indigenous Issues. The focus on those bodies will be their outcome documents such as resolutions and Agreed Conclusions but this chapter will also address the petition procedures available for individual complaints. Also included are more recent procedures such as the Forums where panels can focus on a number of issues including policy discussions on standards and specific violations. The process for drafting treaties will also be covered. The specialized bodies will also be included with a focus on the procedures of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) and the International Labour Organization (ILO) as examples of what those bodies can do to advance human rights. Examples of how some of these procedures have been used are included.

The second part of Chapter 1 will address the human rights treaty bodies’ procedures which focus on review of country reports and the individual petition procedures. It will also include advocacy for adoption of General Comments and General Recommendations that help to interpret the treaty standards. The bodies covered are: the Human Rights Committee (HRC), the Committee on Economic, Social and Cultural Rights (CESCR), the Committee on the Elimination of Race Discrimination (CERD), the Committee Against Torture (CAT), the Committee on the Elimination of Discrimination Against Women (CEDAW), the Committee on the Rights of the Child (CRC), the Committee on Migrant Workers (CMW), the Committee on the Rights of Persons with Disabilities (CRPD), the Committee on Enforced Disappearances (CED), and the Subcommittee on the Prevention of Torture (SPT).

Chapter 2 will cover the regional systems and will focus on the adjudicative bodies of the main three regional treaties: the European Court of Human Rights, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, and the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights. It will not cover the Asian region, because even though there is the Association of Southeast Asian Nations (ASEAN), which is a sub-regional inter-governmental body focused on political, economic and security issues, there is no treaty addressing human rights. The ASEAN Charter of 2008 does include references to democracy and human rights and Article 14 calls for the creation of a human rights body, but this has not yet materialized.

The final chapter of this book concerns advocacy in the context of the International Criminal Court (ICC). Among many other things, both in and out of the Court itself, NGOs and others can promote victim causes, conduct fieldwork, urge the Prosecutor to adopt new cases or legal theories and influence courtroom proceedings. The chapter describes avenues for advocacy as well as practical requirements for engaging with the ICC.

The conclusion will include an analysis of how to assess what might be the best mechanism to use depending on the outcomes being sought. Because most human rights bodies include an admissibility requirement that a case not be pending before other international bodies, a decision may often have to be made on what procedure may be most useful to address the human rights issues in a particular case. An assessment of how to tackle this issue as well as when this prerequisite does not apply will be included.

In considering all of these procedures, it is necessary to keep in mind that often the main effect of outcome documents of international bodies may be the mobilization of shame. This is the case with the resolutions of the Charter-based or regional bodies. Since mobilization of shame often takes place at the national level, NGOs have to continue to play a role in the enforcement and publicity of the actions of the international bodies in the domestic arena.

1 Universal Declaration of Human Rights, G.A. res. 217A (III). UN Doc A/810 at 71 ((1948).
2 See, David Weissbrodt and Connie de la Vega, International Human Rights Law: An Introduction (Penn Press 2007).