21 July 2015
Ladies and gentlemen,
Colleagues and friends
I am honoured by this invitation to address the International Law Commission, whose solemn objective is the progressive development and codification of international law. International norms are at the core of the work of my Office, and we follow your work with deep interest. Over the last six decades, the International Law Commission has succeeded in laying down strong fundamental rules of international law – the rules by which we must live, if we are to live in peace and safety. This work constitutes a monumental, and I hope lasting, achievement.
Among the many important topics currently under your consideration, two stand out, from a human rights perspective. They are the immunity of State officials from prosecution in a foreign criminal jurisdiction; and proposals to draw up a Convention on crimes against humanity. On both these topics, the eminent jurists of this body have been called upon to conceive rules that may have immense impact on the human rights of millions of people around the world. Combating impunity, and strengthening accountability and the rule of law, are among the massive challenges that face my Office; your progress in regard to these two topics is thus of major interest for my mandate and the work of my staff in Geneva, New York and our 64 field presences.
Crimes against humanity
Allow me to first address the question of crimes against humanity – crimes so abhorrent that even beyond their terrible impact on individual victims, they constitute an attack on humanity as a whole. As your Commission has recognised, the prohibition against crimes against humanity is part of those peremptory norms that are clearly accepted and recognized by the international community. The non-derogable nature of the obligations at the source of the prohibition of such crimes has also been recognized by the Human Rights Committee in its General Comment no. 29.
However, in the course of the monitoring work of our field presences; as Human Rights Components in peace-keeping contexts; while conducting fact-finding missions; or in support of international Commissions of Inquiry investigating gross violations of international human rights law and serious violations of international humanitarian law, my staff are constantly confronted with the fact that these nightmarish crimes constitute daily reality in many countries in the world.
Your work on an international Convention on crimes against humanity is therefore highly significant. The proposed instrument can bring great potential value, both in terms of prevention of crimes against humanity and in increasing the efficiency of responses to such crimes. The first four draft articles of the proposed Convention on crimes against humanity, which were provisionally adopted last month by the Drafting Committee of this Commission, are very promising, and we look forward to your further work on this crucial topic.
I have noted with interest that two of the draft articles which you have provisionally adopted set out the obligation of States to preventcrimes against humanity. (I refer to Articles 2 and 4). Assisting States to comply with their obligation to prevent human rights violations – in particular gross violations that may amount to crimes against humanity – is a priority for my Office. We have repeatedly emphasized that prevention requires sustained efforts from States to ensure respect for human rights and the rule of law, and eliminate risk factors. This requires an effective, and human rights-compliant, legal, administrative and policy framework, with legitimate and accountable democratic institutions, equal participation of all in the conduct of public affairs, and a diverse ecosystem of strong civil society actors and independent media. I am therefore pleased to note that Draft Article 4 refers to States’ obligation to cooperate with “other organizations”, including civil society, in their efforts to prevent crimes against humanity.
A Convention on crimes against humanity can also contribute to increasing the efficiency of national and international responses to these crimes, and to the improvement of accountability – another vital priority for my Office. More States should explicitly criminalize crimes against humanity in domestic law. A Convention could contribute to this, by encouraging States to harmonize national frameworks with international norms and standards.
As you continue your work on this project, I would welcome your consideration of an explicit aut dedere aut judicare obligation on States to prosecute or extradite alleged perpetrators who are present within their jurisdiction – an obligation arising from the peremptory nature of crimes against humanity and the resulting importance of inter-State cooperation for the investigation, prosecution and punishment of such crimes. Other, related obligations include the non-applicability of statutes of limitations for such crimes; the universal application of these obligations, whether in time of peace or war, and their non-derogability under “states of emergency”; and the non-applicability of any immunities, up to and including Heads of State.
This brings me to the question of the immunity of State officials from prosecution in a foreign criminal jurisdiction, which is clearly a crucial consideration in any discussion of accountability for human rights violations. Allow me to recall that the International Military Tribunals for Nuremberg and Tokyo decisively overturned the notion that State officials may be immune from prosecution. This has been described as a tectonic shift in the international legal order, breaking through the veil of sovereignty so that criminals serving as State officials could no longer hide behind their functions to escape justice. In subsequent decades the principle has been reaffirmed by the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, as well as the Special court for Sierra Leone and the Statute of the ICC.
Yet this powerful and well-established principle continues to be contested. The debate stems in part from the Case Concerning the Arrest Warrant of 11 April 2000, DRC v. Belgium, when the International Court of Justice found that the issue by Belgium of an arrest warrant against Abdulaye Yerodia Ndombasi failed to respect the immunity from criminal jurisdiction and the inviolability which he enjoyed as the incumbent Minister for Foreign Affairs of the Congo.
It is important to recall that the ICJ also emphasized in this judgment that “the immunity enjoyed by certain senior State officials does not mean that they enjoy impunity in respect to any crimes they might have committed, especially the gravest crimes.” The Court also ruled that "while jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility”.
For let us not forget that all too often, what is at stake in such cases is the commission of terrible crimes – crimes so grave that shame and shock humanity. And what immunity means, is, clearly, impunity – a denial of justice that freezes into place the broken relationships and violated trust that crime has caused. To break the culture of impunity that feeds so many human rights violations, it is crucial that prosecutions be allowed to proceed. Conversely, preventing prosecutions would not only constitute a profound affront to victims but also, in effect, empty of their meaning vital areas of international human rights law.
This is why your work in setting clear parameters to the immunity of State officials is so crucial, and here I think of two distinct sets of limits that could be set where international crimes are concerned.
First, it should be clear that any immunity is personal, and ceases when the person leaves office, since immunity results solely from the need to allow States to function effectively. Recognizing functional immunity when international crimes have been committed would inadvertently signal that the commission of international crimes can be legitimate acts of States. This would defeat all the human rights obligations of States and, beyond, would undermine the very system of international law.
Second, the categories of individuals deemed to benefit from this limited personal immunity must be as restricted as possible, along the lines of the provisions of Art 7(2)(a) of the 1969 Vienna Convention on the Law of Treaties and Article 21 paragraph 2 of the 1961 Vienna Convention on Diplomatic Relations.
OHCHR's work and concerns
Since this is the first visit to the International Law Commission by a High Commissioner for Human Rights, I would like, if I may, to turn now to the work of my Office, to provide a quick introduction to some of the similarities and points of connection between us.
Perhaps most immediately relevant to the work of the Commission is OHCHR’s support for the international human rights mechanisms – including their work in relation to the development of new instruments, and their guidance on fundamental aspects of human rights law.
Many of you will be aware of the Secretariat functions we perform for the ten UN human rights Treaty Bodies, which constitute the weight-bearing pillars of the international human rights system. There are now ten Committees of independent experts, which play an important role in establishing the normative content of human rights and in giving concrete meaning to individual rights and state obligations. The Committees monitor, question and guide compliance with the human rights treaties; eight of them also provide for individual complaints by people who have sought, in vain, to obtain effective remedies in national courts. The work of these Committees greatly contributes to the development of international human rights law – not only through their jurisprudence, following consideration of many individual cases, but also through important general comments.
For instance, last year, the Human Rights Committee’s general comment 35 on article 9 of the International Covenant on Civil and Political Rights, regarding the right to liberty and security of person, codified the Committee’s work over the past three decades on this issue, to give government officials, legal practitioners, human rights monitors and civil society a full understanding of the Committee's views regarding when and how is it justified to deprive a person of their liberty, as well as the nature of States’ obligations to avoid unlawful or arbitrary detention. You may also be aware that just last week, the Committee held a half-day general discussion preparatory to a new general comment, on Article 6, regarding the right to life.
The 55 Special Procedures mandates of the Human Rights Council, which are similarly supported by my Office, also represent a wealth of expertise, and contribute important guidance. One recent example is the Working Group on Arbitrary Detention's "Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court", which will be presented to the Human Rights Council during its 30th session in September 2015. Other examples include a Handbook for realizing the human right to safe drinking water and sanitation, which was developed by the Special Rapporteur on the right to water; and the "Basic Principles on the right to effective remedy for victims of trafficking in persons" developed by the Special Rapporteur on trafficking.
Mandate holders frequently raise emerging human rights issues. For example, they recently brought attention to the use of drones in lethal extraterritorial counter-terrorism operations; the use of remotely piloted aircraft or armed drones and emerging autonomous weapons systems; mass digital surveillance for counter-terrorism purposes; implementation of the right to Social Security through the universal adoption of social protection floors; and the potential human rights implications of use of private military and security companies. Special Procedures mandate-holders have also played a key role in early warning, assessing crises and other situations requiring urgent intervention.
In addition, when allegations of massive, urgent and complex violations of human rights require a full-scale investigation, the Human Rights Council – like the Security Council in New York – has frequently mandated my Office to establish Commissions of Inquiry or fact-finding missions to investigate situations of serious violations of international human rights law and international humanitarian law, and to draw up recommendations aimed at promoting accountability for such violations – including by recommending that the situation in question be referred to the International Criminal Court. As you may be aware, several recent Commissions of Inquiry and fact-finding missions have identified violations strongly suggestive of international crimes.
My Office also act as the Secretariat for the Human Rights Council, which meets formally three times a year, in addition to Special Sessions that may be called at any time. OHCHR prepares the Council’s discussions, including producing thematic reports, such as our ground-breaking recent work on data surveillance and LGBT rights. Another report which may be of particular interest for your work is our report on the role of prevention in the promotion and protection of human rights, which will be discussed by the Council in September.
This work with the Human Rights Council extends to our support for the Universal Periodic Review, in which every one of the 193 Member States must submit to detailed scrutiny of their human rights record, every four years. So far two rounds of the UPR have taken place, with detailed follow-up of hundreds of recommendations – many of them generated by the work of the Treaty Bodies and Special Procedures, as well as expert guidance by civil society actors. The UPR also provides an opportunity for us to intervene with proposals for capacity-building to improve States' performance on specific issues.
This bring me to our work in countries – the work that ensures that our human rights norms are useful, living concepts, tools that enable people to obtain justice for wrongs and protection for their rights. The staff of OHCHR’s field presences, which as I’ve said currently number 64, spend a significant portion of their time on training – for government officials, for members of security and police forces, and for civil society groups. The core drive is to translate human rights into practical measures. How to question people without using torture. How to manage public gatherings without excessive use of force. How to ensure that minorities can raise their voices and participate fully in the life of a nation. How to ensure that women – and other discriminated groups – can claim their rights from judicial systems that continue to be operated, in majority, by men.
We also work in the longer term to strengthen the laws and institutions that should protect rights, including courts, parliaments, regional councils, schools and community groups. We seek to empower human rights defenders and civil society activists of all kinds – including activists for minority rights – so that they can confront prejudice effectively, and with confidence. And, of course, we monitor and report on the reality of human rights on the ground – advocating, where necessary, for improvements.
Finally – but is there ever really a “finally” in the context of human rights? – a few words about the work of my Office in New York. The core of our work there is to amplify our concerns throughout the UN family, ensuring that the Secretary-General’s new Human Rights Up FrontPolicy is facilitated by fully informing and advising all relevant actors. Armed with the knowledge that violations of human rights constitute the clearest early warning signs of instability and violence, Human Rights Up Front seeks to ensure that prevention of human rights violations is a core priority for every UN actor. Clearly, this must be grounded in work to identify early signs of violations. Alongside the field presences of my Office, the human rights mechanisms which we support collect a wealth of information on human rights issues, including on gaps in human rights protection; the risks of violations; and the patterns, scale and nature of violations. This information, when effectively analysed, coordinated and channelled, has informed the development of strategies and responses in partnership with States, as well as decisions on the best course of action by the UN.
I think you will agree that this is quite an extensive menu of work. In fact, you may feel it is positively schizophrenic. But there is a distinct logic to it, and that logic is active change. Acting in accordance with the laws that you help write, we seek to ensure compliance by detecting gaps in protection; advocating for better protection; and establishing programmes to help State and civil society actors develop the capacity to provide that protection.
And how successful are we? That is the crux of the matter, is it not, for both our organisations. To what degree can we, in all honesty, claim that our work serves to ward off human rights violations, to save and improve lives? We count the death-toll of massacres, we train key officials, we boost the skills of activists working for land rights, for women’s rights, and many more; we seek to restrain vicious and violent attacks on minorities; we advocate changes to laws and institutions, so that they become more responsive, more accountable and more fair. But are we having an impact?
Perhaps a thing as vast as social change cannot even be measured, in a time-frame as short as the lifespan of my Office – for we are barely more than 20 years old. Perhaps the work of building human rights into the social fabric – with its emphasis on the rule of law; non-discrimination and inclusion; access to effective judicial or other institutions; and participatory democratic governance – is necessarily never-ending. Certainly this is the most inspirational and meaningful work possible, and as we seek to advance human rights in every region of the world, we are glad to be able to count on your work, which is so fundamental to maintaining peace, security and the rule of law.