In June 2015, the Working Group on Death Penalty and Extrajudicial, Summary or Arbitrary Killings (Working Group) of the African Commission on Human and Peoples’ Rights (ACHPR) met in Kigali, Rwanda to develop a General Comment on Article 4 (right to life) of the African Charter on Human and Peoples’ Rights, also known as the Banjul Charter (Charter). This meeting also established that the draft general comment would be opened to public consultations and written comments from interested parties. See ACommHPR, Draft General Comment No. 3 on Article 4 of the African Charter on Human and Peoples’ Rights (the right to life) (Draft Comment), June 2015.
Category Archives: civil society
On August 17, 2015 the UN Committee on the Rights of Persons with Disabilities (CRPD) commenced its 14th session in Geneva, Switzerland. During this session, which will end on September 4, the Committee will review the reports of Brazil, the European Union, Gabon, Kenya, Mauritius, Qatar, and Ukraine and adopt concluding observations. The Committee will also review reports submitted by civil society organizations and national human rights institutions (NHRIs) concerning the States’ implementation of the International Convention on the Rights of Persons with Disabilities (ICRPD).
On August 5, 2015, the Inter-American Commission on Human Rights (IACHR) published its report “Towards the Closure of Guantanamo,” which examines the human rights situation of detainees at the U.S. Naval Base in Guantanamo Bay, Cuba. See Inter-American Commission on Human Rights, Towards the Closure of Guantanamo (Report), 2015. The report concludes that detainees are subject to indefinite detention; torture and other cruel, inhuman, or degrading treatment; and a discriminatory detention regime that does not provide due process or other judicial protection. Commissioner Felipe González, IACHR Rapporteur for the United States, emphasized that “public security reasons cannot serve as a pretext for the indefinite detention of individuals without charge or trial.” [OAS Press Release] The report concludes with a number of recommendations including improving confinement conditions, ensuring detainees’ access to justice, and closing Guantanamo.
To gather information for the report, the Commission organized an expert meeting in October 2013 focusing on the situation of detainees at Guantanamo Bay, which included the participation of Clifford M. Sloan, who at the time was the Special Envoy for Guantanamo Closure at the U.S. Department of State, officials in the Office of the Chief Prosecutor and the Office of the Chief Defense Counsel for the Military Commissions, habeas counsel representing Guantanamo detainees before federal courts, a psychiatric and medical expert, civil society organizations, scholars, and members of the office of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. The Commission also considered information gathered in the course of public hearings and working meetings held before the Commission, materials submitted with respect to precautionary measures and individual petitions, academic research studies, as well as reports issued by UN bodies, NGOs, and the media. See Report at paras. 7-8.
Background on the Commission’s Prior Engagement with Guantanamo
To address the human rights situation in Guantanamo, the Commission had previously requested that the United States (U.S.) adopt precautionary measures to prevent irreparable harm to persons subject to its jurisdiction. The first request, which was made in 2002, concerned all the detainees in Guantanamo (PM 259-02) and asked the U.S. to define the legal status of each detainee, investigate allegations of torture and maltreatment, and close the detention facility. The Commission later extended the scope of these measures. Additionally, the Commission requested that the U.S. adopt precautionary measures for the following detainees: Omar Khadr (PM 8-06), Djamel Ameziane (PM 211-08), and Moath al-Alwi (PM 46-15). These measures included ensuring that they would not be subject to torture or to cruel, inhumane or degrading treatment while in custody and not deporting them to a country where they might be subjected to such treatment. See id. at paras. 24-37.
The Commission has also published two resolutions regarding the situation of the detainees in Guantanamo. On July 28, 2006, the Commission issued Resolution No. 2/06 on the Guantanamo Bay Precautionary Measures, which noted the failure of the United States to adhere to earlier precautionary measures. This resolution urged the U.S. to close the facility and remove detainees in accordance with its obligations under international law.
On July 22, 2011, the Commission issued Resolution No. 2/11 Regarding the Situation of the Detainees at Guantanamo Bay, United States, which stated that while the U.S. has recognized that detainees have the right to judicial review of their deprivation of liberty, this right was not ensured in practice. The Commission also noted that the United States violated the principle of non-refoulement, which prohibits a State from transferring and deporting individuals to countries where their life, personal integrity, or freedom may be in danger, given that mechanisms are not in place to review decisions to transfer detainees, as a result of which they may face a risk of torture or cruel, inhuman and degrading treatment or punishment. See id. at paras. 38-46. The Commission reiterates later in the report that forcibly transferring detainees who claim that they will be persecuted or subjected to torture or other cruel, inhuman or degrading treatment or punishment violates both precautionary measure 259/02 as well as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). See id. at para. 296-300.
To monitor the situation with respect to human rights in Guantanamo, the Commission also conducted 11 public hearings between 2002 and 2015, which allowed for a dialogue between victims, civil society, and States. See id. at paras 47-50.
Individual petition system
In its report, the Commission addresses cases that have been brought to the Commission’s attention through the individual petition system. The Commission held admissible the petition concerning Djamel Ameziane (an Algerian national who was allegedly detained in Guantanamo without charge since 2002, tortured, and faced the risk of being transferred to Algeria where he could be persecuted. Ameziane was later repatriated to Algeria in 2013, an act which the Commission publicly condemned). This was the first time the Commission accepted jurisdiction involving a Guantanamo detainee. See id. at paras. 51-54.
Requests to visit Guantanamo
Additionally, the Commission, through its Rapporteurship on the Rights of Persons Deprived of Liberty, requested to visit Guantanamo in 2007, 2011, and 2013. However, each time this request was made, the U.S. responded that it would grant permission to visit the facility on the condition that the delegation would refrain from freely communicating with detainees. The Commission did not accept this limitation. See id. at paras. 55-59.
Finally, since 2006, the Commission has issued nine press releases, which have addressed the need to immediately close the detention facility, the conditions of detention, and the forced transfer of Guantanamo detainees. One of these press releases was issued as a joint statement in conjunction with four UN mandate holders, and marked the first time that the IACHR had done this. See id. at paras. 60-61.
Human Rights Violations Regarding Conditions of Detention
Right to Personal Liberty
The report explains that the right to personal liberty and security and to be free from arbitrary arrest is enumerated in the American Declaration of the Rights and Duties of Man (American Declaration), and that the U.S.’s post-9/11 policy of detaining prisoners at Guantanamo “without charge or trial” contradicts these principles as well as other international legal protections. See id. at paras. 65, 96.
The Commission notes that although there have been changes in U.S. policy, including the recognition that the laws of war govern detention and treatment and that detainees should not be classified as “enemy combatants,” the National Defense Authorization Act (NDAA) reaffirmed in 2014 that the Authorization for Use of Military Force (AUMF) allows for the detention of persons without trial “until the end of hostilities.” See id. at paras. 78, 82. According to the Commission, while a State might be justified in detaining a person for a longer period than ordinarily permissible, this detention must last “for only that period necessary in light of the situation,” and a detainee must still be afforded rights, including the right to be informed of the reasons for detention, as well as legal, medical, and consular assistance. See id. at para. 92.
Right to Personal Integrity
The report notes that persons deprived of liberty have a right to humane treatment while in a State’s custody. The American Declaration contains several provisions (right to life, liberty, and personal security; right to protection from arbitrary arrest; right to due process of law) concerning humane treatment, that are also reflected in the Third Geneva Convention and the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. The report cites to numerous incidents where detainees at Guantanamo were subjected to torture and other cruel or degrading treatment and concludes that these cases violate the right to personal integrity.
Additionally, the report notes that the U.S. has responded to detainees’ hunger strikes aimed at protesting indefinite detention and confinement conditions by force-feeding them. The report concludes that the State should conduct an individualized assessment to determine whether a detainee possesses the capacity to make a judgment about the physical consequences of refusing food in order to respect the right to personal integrity. This practice which would be more aligned with medical expertise on the topic as well as decisions issued by the European Court of Human Rights. See also ECtHR Factsheet – Hunger Strikes in Detention. See Report at paras. 97-152.
Human Rights Violations Regarding Access to Justice
The Commission highlighted due process concerns at Guantanamo, including the fact that only a specific category of individuals, namely foreign Muslim men, have been detained there. See id. at para. 221.
Right to an Effective Remedy
The report states that the right to judicial protection is enumerated in the American Declaration and that judicial remedies must be available, adequate, and effective in protecting the right to personal liberty. The Commission notes that the landmark U.S. Supreme Court decision in Boumediene v. Bush that Guantanamo detainees had the right to file habeas corpus petitions before federal courts did not address “the content of the law” governing detention, nor did it address other evidentiary and access-to-counsel issues. The report notes that those detained at Guantanamo therefore do not have access to domestic remedies that would allow them to challenge the legality of their detention. See id. at paras. 157-158, 162, 189.
With respect to trials of individuals suspected of terrorism by military commissions, the Commission’s report acknowledges policy changes in the Military Commissions Act of 2009 (MCA), but expresses concern regarding a number of issues, including: the independence and impartiality of the commissions; uncertainty as to whether the U.S. Constitution applies in Guantanamo; defense counsels’ access to evidence and witnesses, as well as the ability to cross-examine witnesses; and defendants’ rights to a speedy trial. See id. at para. 213.
Right to Legal Representation
Right to Legal Representation
The Commission’s report notes that challenges remain regarding detainees’ right to legal representation, including: restrictions on the ability of defense counsel to speak with clients on the phone, thus requiring them to travel to Guantanamo, and the lack of respect for attorney-client privilege, confidentiality, and the denial of access to consular assistance. The Commission notes that these restrictions and limitations violate the right to a defense. See id. at paras. 241-250.
Right to Periodic Review of Detention
The Commission expresses serious concerns about the Periodic Review Board (PRB), which was established in 2011 to determine whether certain detainees in Guantanamo represent a “continuing significant threat to security of the United States.” See id. at para. 254. For example, the report notes that the PRB is not an independent and impartial decision-making body, that it did not start operating until more than two years after it was created, that it had only reviewed 14 cases by March 2015, and that there is continued uncertainty as to whether-attorney client privilege applies to these proceedings. See id. at paras. 254, 260-66.
International Legal Obligations Regarding the Transfer or Release of Detainees
Detainees Cleared for Transfer
Challenges to detainees’ transfers
The Commission calls for various provisions of the National Defense Authorization Act related to the prohibition on transferring detainees to the U.S. to be repealed. In particular, the Commission notes that these transfers should be permitted if a detainee needs emergency medical treatment, for trial, or when transferring a detainee to their home country would constitute a risk. See id. at para. 280-289.
The report notes that as of March 2015, Yemeni nationals comprise more than 60% of the total number of detainees at Guantanamo and 85% of the population that is eligible for transfer. While deteriorating security conditions in Yemen pose a significant challenge to the transfer of detainees and the closure of Guantanamo, President Obama lifted the 2010 moratorium on transfers to Yemen in May 2013 and announced that transfers would be authorized on an individual basis subject to the establishment of rehabilitation and monitoring programs. The report notes that the general restriction on transfers that was previously in place was discriminatory because it was based on the detainees’ nationality and the political situation in Yemen. The Commission calls for the situation of Yemeni detainees to be examined with respect to the threat that each individual allegedly poses, rather than as a group and concludes that “accelerating the transfer of Yemeni nationals” should be prioritized. See id. at paras. 290-295.
Executive Prerogative Powers
The Commission notes that while the U.S. argues that Guantanamo remains open because of Congress and the National Defense Authorization Act (NDAA), that the Executive actually does have the authority to finalize the transfer of detainees. While the U.S. transferred 11 detainees in 2013, followed by 23 in 2014, the Commission encourages an acceleration of such transfers. See id. at paras. 302-305.
Detainees Not Cleared for Transfer
Detainees Facing Criminal Charges
The report states that as of December 2014, 32 detainees at Guantanamo were designated for prosecution by the Guantanamo Review Task Force, and that the U.S. had brought war crimes charges against 19 of them. According to the report, trials by the military commission system have been slow and inefficient, with only eight detainees (1% of all prisoners held at Guantanamo) being convicted thirteen years after Guantanamo opened. Additionally, the few active cases that are pending before military commissions are only at the pre-trial stage. The Commission notes that lengthy proceedings violate defendants’ right to a speedy trial guaranteed by the American Declaration and recommends that some detainees be transferred to the U.S. for prosecution, with the ability to serve sentences in their home or third countries, so that they are ensured U.S. constitutional guarantees and because this would also be a step towards the closure of Guantanamo. See id. at paras. 307-17.
Detainees in Continuing Detention
According to the report, as of March 2015, there were 56 detainees at Guantanamo who had not been designated for transfer or were not serving sentences or being tried. These detainees will be evaluated by the Periodic Review Board (PRB) to determine whether they “represent(s) a continuing significant threat to the security of the United States.”
The Commission expressed concern about the following: that at the end of 2014, 30 detainees still remained in continuing detention, that in the case of the four detainees for whom the PRB decided that continued detention was necessary, a three year waiting period exists before a new review can be conducted. See id. at paras. 318-324.
The report concludes by noting again that the continuing and indefinite detention, in the absence of due process guarantees, of individuals in Guantanamo violates their rights under international law. The report also notes that while President Barack Obama ordered the closure of Guantanamo on January 22, 2009, doing so is a complex matter, partly because, among other things, any transfers must be done in accordance with the principle of non-refoulement, and trials must ensure the right to due process.
Finally, the Commission concludes by issuing a number of recommendations to the U.S. concerning conditions of detention, access to justice, and the closure of Guantanamo.
- Conditions of Detention
- Hold detainees in accordance with international human rights standards.
- Ensure that judicial review is available, adequate, and effective.
- Provide detainees with adequate medical, psychiatric, and psychological care in accordance with the principles of confidentiality, informed consent, and patient autonomy.
- Respect detainees’ right to freedom of conscience and religion.
- Declassify all evidence of torture and publicize information about confinement conditions at Camp 7.
- Establish an independent monitoring body, with the participation of civil society, to investigate confinement conditions.
- Comply with recommendations issued by the Committee Against Torture (CAT), including investigating allegations of detainee abuse, prosecuting offenders, and providing redress to victims; improving detention conditions to end hunger strikes; and prohibiting the force-feeding of detainees who are capable of making informed decisions.
- Authorize a visit by the Commission to Guantanamo, including private interviews with detainees.
- Access to Justice
- Try detainees in federal courts rather than before military commissions and respect defendants’ rights to due process.
- Guarantee that judicial review is available, adequate, effective, and allows the possibility of release.
- Ensure that courts thoroughly examine the government’s evidence to ensure that detention is based on clear and convincing evidence.
- Respect attorney-client privilege and provide detainees and their counsel with all of the evidence used to justify their detention.
- Closure of Guantanamo
- Repeal the National Defense Authorization Act (NDAA) provisions which prohibit the transfer of detainees to the U.S. for prosecution, incarceration, and medical treatment.
- Ease restrictions on transfers to third countries and accelerate transfers in accordance with the principle of non-refoulement.
- Expedite the Periodic Review Board (PRB) process and immediately release detainees who will not be charged or tried.
- Transfer detainees to the U.S. to be tried in federal court and transfer convicted detainees to federal prisons to serve their sentences.
See id. at paras. 326-330.
The Commission also urges OAS Member States to consider the possibility of receiving Guantanamo detainees.
The Inter-American Commission on Human Rights is responsible for monitoring, promoting, and protecting human rights in the 35 Member States of the Organization of the Americas (OAS). To learn more about the IACHR, the Inter-American Court of Human Rights (IACtHR), and the Inter-American System, visit IJRC’s Online Resource Hub.
To learn more about the situation of detainees in Guantanamo Bay, visit IJRC’s News Room.
On August 3, 2015 the UN Committee on the Elimination of Racial Discrimination (CERD) commenced its 87th session in Geneva, Switzerland. During this session, which will end on August 28, the Committee will review the State reports of Colombia, Costa Rica, the Czech Republic, Macedonia, the Netherlands, Niger, Norway, and Suriname. The Committee will also review reports submitted by civil society organizations and national human rights institutions (NHRIs) concerning the States’ implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) as well as follow-up information submitted by States parties.
The Committee Against Torture (CAT) is currently holding its 55th Session in Geneva, which began on July 27 and will continue through August 14. According to the Committee’s agenda, CAT is considering the State reports of Iraq, Slovakia, and Switzerland. During the session, the Committee will meet with representatives from each State regarding the State’s report to CAT. The Committee will also review reports submitted by civil society organizations and national human rights institutions (NHRIs). The Committee will then issue concluding observations for each State, including its recommendations and concerns about each State’s implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).
On July 22, 2015, the Inter-American Commission on Human Rights (IACHR) launched its Individual Petition System Portal (IPSP), which gives parties digital remote access to their petitions and cases. The IACHR is the first regional human rights body to provide parties with electronic access to this type of information. The creation of the portal is also part of a larger effort to increase access to information for people seeking remedies from the Inter-American human rights system. IACHR Chair and Commissioner, Rose Marie Belle Antoine stated that the portal’s launch is “a really historic moment that will radically change the processing of petitions, cases, and precautionary measures” and is a “major step forward in the use of new technologies to enable all users of the Inter-American human rights system to exercise the right of access to information.” [OAS Press Release]
On July 14, 2015, the United Nations Human Rights Committee met in Geneva for a half day general discussion to begin the process of developing a general comment on Article 6 (Right to Life) of the International Covenant on Civil and Political Rights (ICCPR). See UN Human Rights Committee, Draft General Comment No. 36: Article 6 (Right to Life), UN Doc. CCPR/C/GC/R. 36, 1 April 2015. The Human Rights Committee adopts authoritative interpretations of specific rights set forth in the ICCPR in the form of general comments, which guide States and other actors in understanding the scope of the right. Prior to this discussion, the Human Rights Committee adopted a note identifying issues that the Rapporteurs on the General Comment, Mr. Yuval Shany and Sir Nigel Rodley, contemplated being addressed in the general comment. The discussion on the development of the general comment, which took place during the 114th session, included oral presentations as well as the review of written submissions from national human rights institutions (NHRIs), civil society organizations, and members of academia.
Background to Article 6 (Right to Life)
During its 112th session in 2014, the Human Rights Committee decided to begin the drafting of a general comment on Article 6 of the ICCPR by revisiting and expanding upon General Comment 6 (1982) and General Comment 14 (1984), both of which are general comments on Article 6. The new general comment will be drafted in light of information obtained since the drafting of those two general comments including information gained through the Committee’s review of States’ reports and communications, as well as through the adoption of recent general comments on related issues. See, Draft General Comment No. 36: Article 6 (Right to Life), 1 April 2015. The purpose of the new general comment is to guide States and other actors in adopting measures that will enable them to fully comply with the rights enumerated in Article 6. [OHCHR]
Article 6 of the ICCPR states:
- Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
- In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.
- When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
- Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
- Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
- Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
Human Rights Committee Discussion
On April 1, 2015, in advance of the discussion on the general comment, the Committee adopted a note identifying issues that Mr. Yuval Shany and Sir Nigel Rodley, both members of the Human Rights Committee and Rapporteurs on the general comment, considered should be addressed in the general comment. See Draft General Comment No. 36: Article 6 (Right to Life), 1 April 2015.
The note highlighted issues that should be focused upon for each subparagraph of Article 6. For example, with respect to Article 6(1), the following issues are relevant: how Article 6 protections relate to other ICCPR provisions protecting the right to life, including Article 7 (prohibition against torture and cruel/inhumane treatment), Article 9 (right to liberty and security of person), and Article 20 (prohibition against incitement to discrimination, hostility, and violence) as well as to Article 12 (right to health) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and to the preamble to the Universal Declaration of Human Rights (UDHR); how this provision applies to the unborn, frozen embryos, and clones; the relationship between the right to life and the right to die, for example in the form of euthanasia; how this provision relates to other sources of international law, including humanitarian law, refugee law, environmental law, and criminal law; the regulation of practices such as gun control and drug and alcohol use that could be life-harming; and possible exceptions to the duty to protect life, for example suicide and abortion.
With respect to Article 6(2), the note discusses various issues that could arise with respect to the death penalty including the definition of different terms within subparagraph 2 and the relationship between this article and other ICCPR provisions as well as the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG).
Issues most relevant to subparagraph three include its relationship to the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). Issues to be taken into account regarding subparagraph four include clarifying the meaning of different terms such as pardon, commutation, and amnesty. Regarding Article 6(5), the note discusses the importance of examining whether this provision might be extended to persons with mental disabilities, lactating mothers, and older persons. On Article 6(6), the note discusses its relationship to the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, as well as to Article 7 on cruel, inhuman or degrading treatment or punishment.
Finally, some cross-cutting issues for possible discussion include: the relationship between Article 6 and other ICCPR provisions; derogability of the right to life during times of emergency (allowing States to adjust their obligations under the treaty temporarily in exceptional circumstances, such as armed conflicts or civil unrest); whether reservations (a declaration made by a State which allows it to exclude or alter the legal effect of certain provisions of a treaty) are allowable; the extraterritorial application of this provision (whether a State’s obligation extends to persons or situations outside of its territory); the application of this provision in situations of international and non-international armed conflict, forced disappearances, to non-State and multi-national actors; best practices concerning the implementation of Article 6; and procedural safeguards.
Other issues for consideration included: remedies for Article 6 violations, including the duty to investigate, prosecute, and provide reparations; special protection for detainees, minorities, women, children, older persons, migrants, and persons with disabilities; and the discriminatory application of the right to life.
Written Submissions from NHRIs, Civil Society Organizations, and Academia
The Committee received 115 written submissions from NHRIs, civil society organizations, and members of academia for the discussion concerning draft General Comment 36 on the Right to Life. These contributors included: family rights groups (e.g., The Center for Family and Human Rights and Family Watch International); international organizations (e.g., Amnesty International, Avocats Sans Frontières, and Human Rights Watch); penal reform institutions (e.g., Penal Reform International and the World Coalition Against the Death Penalty); regional human rights commissions (e.g., the New Zealand Human Rights Commission and the Northern Ireland Human Rights Commission); reproductive rights organizations (e.g., Center for Reproductive Rights, the Danish Family Planning Association, and the Information Group on Reproductive Choice); right to health organizations (e.g., Center for Health and Gender Equity, The Program on Global Health and Human Rights at the University of Southern California Institute for Global Health, and People’s Health Movement); and women’s rights groups (e.g., the Asian-Pacific Resource & Research Centre for Women, Women and Media Collective in Sri Lanka, and Women Deliver).
The submissions addressed a number of issues with respect to the right to life including: euthanasia and assisted suicide; whether Article 6 contains an implicit right to abortion; guaranteeing the right to safe abortions; protecting the rights of the unborn; and overlap between the right to life and the right to health, for example with respect to access to and use of sexual and reproductive services. See submissions by Equality Now and Women and Media Collective in Sri Lanka.
Other contributions addressed criminal justice and due process issues such as the following: pre-trial detention and detainees’ rights; extrajudicial, summary, and arbitrary executions; drones and targeted killings; and protecting refugees during rescue operations at sea. See submissions by Amnesty International and Human Rights Watch.
Additionally, some organizations focused on gender and child-related issues such as: the need to prevent gender-based and sexual orientation-based violence, decrease maternal mortality and morbidity, and prohibit child and forced marriages. See submission by Asian-Pacific Resource and Research Centre for Women.
With respect to the death penalty, submissions highlighted that the death penalty, if not abolished, should only be “imposed when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.” See submission by Penal Reform International
Submissions also noted that the right to life encompasses the right to food, sanitation, and water, as well as protection for indigenous populations from forced evictions. See Submissions by Minority Rights Group International and Sanitation and Water for All.
Outcome of the Discussion and Next Steps
After the discussion the Rapporteurs will produce a draft of the general comment which will be presented to the Human Rights Committee for a first reading during a closed session. The text resulting from the first reading will be available to the public on the Human Rights Committee’s webpage and open for comments from interested parties until the second reading. [OHCHR]
The Human Rights Committee is one of ten committees of experts established to assess States’ implementation of specific UN human rights treaties. To learn more about the Human Rights Committee and the other human rights treaty bodies, visit IJRC’s Online Resource Hub.
On July 1, 2015, the United Nations Human Rights Council met in Geneva and adopted a landmark resolution urging States to monitor and regulate private education providers. The resolution aims to address the emergence of large-scale for-profit “low cost” private school chains that target poor families in developing countries and compromise the right to education. See UN Human Rights Council, Resolution 29/L.14/Rev.1, Resolution on the Right to Education, UN Doc. A/HRC/29/L.14/Rev.1, July 1, 2015. This resolution, which was adopted during the 29th regular session, marks the first time that the Human Rights Council has responded to the growing phenomenon of the privatization and commercialization of education. [Right to Education Project] The resolution addresses the issue of the increasing number of educational establishments that are unregistered, unregulated, and funded and managed by individuals or enterprises (including non-State actors that are not religious institutions, NGOs, community-based groups, foundations, or trusts). This has negatively impacted the right to education and undermined the concept of education as a public good. See UN Human Rights Council, Report of the Special Rapporteur on the Right to Education, Kishore Singh, UN Doc. A/HRC/29/30, June 10, 2015, 3..
On June 4, 2015, the United Nations Commission of Inquiry on Human Rights in Eritrea (Commission) issued a report containing findings of “systematic, widespread, and gross human rights violations” that might rise to the level of crimes against humanity committed by the State of Eritrea. [OHCHR Press Release: UN Inquiry] See UN Human Rights Council, Report of the Commission of Inquiry on human rights in Eritrea, A/HRC/29/43 (2015). The report, which was presented to the Human Rights Council at its 29th Session in Geneva, documents a myriad of violations including pervasive surveillance, extrajudicial killings, restrictions on the freedom of expression, a “completely deficient” justice system, prolonged and arbitrary detention, widespread use of torture, forced labor, and sexual violence, which result in a climate in which “it is not law that rules Eritreans – but fear.” [OHCHR Press Release: UN Inquiry]
Following the release of the report, on July 2, 2015, the Human Rights Council passed a resolution extending the mandate of the Commission as well as of the UN Special Rapporteur on the situation of human rights in Eritrea for one year. See UN Human Rights Council, Resolution on human rights situations that require the Council’s attention, A/HRC/29/L.23 (2015).
Commission Mandate and Commissioners
The Commission, which was established through a resolution in July 2014, was mandated to investigate the human rights violations that the UN Special Rapporteur on the situation of human rights in Eritrea had addressed in her previous reports on Eritrea. See UN Human Rights Council Resolution 26/24, Situation of human rights in Eritrea, A/HRC/RES/26/24, 14 July 2014. The Commission focused on the time period from Eritrean independence in 1993 until the present. It was made up of three members: Victor Dankwa (Ghana), Sheila B. Keetharuth (Mauritius), the UN Special Rapporteur on the situation of human rights in Eritrea, and Mike Smith (Australia), the chairperson of the Commission.
The Human Rights Council had requested that the Eritrean government cooperate with the Commission, including by providing unrestricted access to visits and by providing information. However, the government did not respond to this request. The Commission therefore conducted its work by interviewing more than 550 witnesses (100 of whom were women) living outside of Eritrea (in, for example, Djibouti, Ethiopia, Germany, Sweden, and the United States); reviewing 160 written testimonies; and holding meetings with UN agencies and nongovernmental organizations. The Commission noted that one of its key challenges was that witnesses were afraid to provide testimony because they believed they were being monitored by authorities in Eritrea and that they or their family members would be targeted and endangered. The Commission therefore put into place measures to protect witnesses. See UN Human Rights Council, Report of the Commission of Inquiry on human rights in Eritrea, A/HRC/29/43 (2015), at 3-4.
The Commission testified before the Human Rights Council at its 29th Session in Geneva. The Commission found that Eritrea has violated rights in the following areas:
- Privacy: the Eritrean government uses various tools, including harassment and intimidation, to spy on and engage in surveillance activities. These practices extend beyond national security or crime prevention needs. As a result, Eritreans self-censor, out of fear that any information that is collected could result in arbitrary arrest, detention, torture, disappearance, or death. The report includes the experience of one witness who says: “When I am in Eritrea, I feel that I cannot even think because I am afraid that people can read my thoughts and I am scared.” See id. at 6.
- Freedom of movement: the State also inhibits free movement, both for those traveling within the country and those attempting to leave (approximately 5,000 people flee Eritrea each month). Those who are forced to return to Eritrea after leaving are often arrested and detained, and subjected to ill-treatment and torture. See id. at 6-7.
- Freedom of expression: the State severely curtails freedom of opinion, expression, assembly, association, and religion. In 2001, following a crackdown that took the form of the killing or disappearance of members of the G-15 reform group, the government has continued to severely punish individuals who express opinions about or ask questions regarding a wide array of topics. Also in 2001, the government closed down independent newspapers and silenced journalists by detaining, torturing, and disappearing them. Since that time, the government continues to control the press and to restrict access to information. Additionally, Eritreans cannot exercise the freedom to assemble and associate; attempts to do so have resulted in arrests, detentions, and extrajudicial executions. See id. at 7-8.
- Freedom of religion: the Eritrean government also inhibits and controls religious freedom through restrictions and attacks on religious communities; prohibitions on any religious gatherings aside from the four authorized religious denominations; and arrests, ill-treatment, arbitrary deprivation of citizenship, torture, disappearances, and killings of those attempting to practice their religions. See id. at 8.
- Administration of justice: as a result of the fact that Eritrea’s 1997 Constitution was not implemented, that parliament has not met, and that the courts are controlled by the executive, the Commission found that the rule of law effectively does not exist in Eritrea. Common violations with respect to the administration of justice include violations of the right to fair trial and due process. For example, court judgments are usually not made public, and sometimes accused individuals are not even aware that they have been tried or of the length of their sentences. See id. at 8-9.
- Arbitrary arrest and detention: the State uses information collected through spying to arbitrarily arrest and detain individuals. These arrests and detentions are made in the absence of formal charges and they cannot be reviewed to determine whether they are lawful. The Commission described the arrests as: “unjust, unpredictable, unreasonable and disproportionate.” Groups that tend to be particularly targeted for arrest include political opponents, journalists, and members of religious communities. See id. at 9.
- Enforced disappearances: those individuals who are arrested and detained are victims of the widespread and systematic practice of enforced disappearance, which also entails the violation of the right to life, the right to not be subject to torture, and the right to liberty, among other rights. The Commission found that statistics on the number of enforced disappearances were unavailable, but that the government has been especially likely to target the following groups: political dissidents, journalists, religious leaders, and leaders and members of the Afar ethnic group. See id. at 9.
- Arbitrary deprivation of life: the government’s shoot-to-kill policy in border areas is used to prevent individuals from leaving Eritrea. While this policy might have been revised in recent years, the Commission found that people were still being shot in late 2014. Additional examples of the arbitrary deprivation of life include mass killings of members of ethnic groups and extrajudicial executions of ordinary citizens. See id. at 10-11.
- Detention: detention in Eritrea is characterized by the absence of judicial review; being held in secret and unofficial facilities, including underground metal containers and caves; incommunicado detention; and harsh conditions, including having to sleep in human waste and solitary confinement. Women in detention face the risk of sexual and gender-based violence. Children have also been detained, and are sometimes kept in the same inhumane conditions as the adults. See id. at 11.
- Torture: the ill-treatment that is used against detainees, including in the form of extreme restraint, beatings, and rape, intended to inflict harm, to extract confessions, and to punish and intimidate, constitutes a “deliberate policy” of torture. Furthermore, the Commission found that perpetrators of torture enjoy impunity. See id. at 12.
- Right to property: the State’s land reforms disproportionately affect women, as well as the Afar and Kunama minorities, who have been dispossessed of their lands, livelihoods, and culture. Additionally, because the State exclusively owns Eritrea’s land and natural resources, it uses its ownership of lands and resources to punish perceived enemies. See id. at 12.
- National service: forcible recruitment of children; sexual violence and torture committed against women and girls in military training camps; and indefinite national service in conditions characterized by arbitrary detention, torture, and forced labor are common practices. See id. at 12-13.
- Forced labor: military conscripts are subjected to torture and forced labor that rises to the level of slavery. See id. at 13-14.
The Commission made numerous recommendations to the government of Eritrea regarding the human rights violations it found. These include:
- General: implement the Constitution of 1997 and ensure that any amendments are made in a transparent and participatory manner and are consistent with the State’s international human rights obligations; address and ensure accountability for past human rights violations including extrajudicial killings, enforced disappearances, torture, unlawful detention, sexual violence, and forced labor; and put into place an independent and impartial mechanism to investigate these violations and their perpetrators and to provide redress to victims.
- Governance and administration of justice: hold free, fair, and transparent elections; ensure that court processes are transparent; and create an independent national human rights institution to monitor and investigate human rights violations.
- Enforced disappearances, arbitrary arrest, and detention: end the practice of enforced disappearances and extrajudicial executions, including the shoot-to-kill policy in border areas; release all individuals who are unlawfully and arbitrarily detained; put into place a mechanism to determine the whereabouts of the disappeared; and end the practice of incommunicado detention and close unofficial and secret detention facilities.
- Detention conditions: ensure that detention conditions and treatment of prisoners are aligned with international standards, use solitary confinement only in exceptional circumstances, put into place methods to independently oversee detention centers, and allow international monitoring of detention facilities.
- Torture and ill-treatment: put an end to the use of torture and other forms of ill-treatment, put into place complaints mechanisms, and investigate allegations of torture and ill-treatment.
- Public freedoms: allow freedom of movement both within the country and for those seeking to leave the country, allow for independent media, protect journalists from arbitrary arrest, and end persecution on the basis of religion.
- Property: ensure that evictions are only conducted in conformity with international human rights law, stop forcible evictions, and terminate the practice of taking land away from minority ethnic groups without providing compensation.
- National service: limit the national service requirement to 18 months; allow for conscientious objection as well as other exceptions, such as on the basis of physical or mental health issues; put into place a military code that prohibits and punishes ill-treatment and harassment of conscripts; create a complaints mechanism where conscripts can bring their allegations of ill-treatment and be provided with redress; and end forced recruitment of children.
- Gender equality: strengthen legislation that protects and promotes gender equality; ratify the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; allow for civil society organizations that work to promote gender equality; investigate and sexual and gender-based violence; and address all forms of violence against women, including domestic violence, as well as sexual and gender-based violence, whether committed by State or non-State actors.
The Commission made numerous recommendations to the international community, including: establish long-term solutions to assist Eritrean refugees and promote regular paths of migration from Eritrea; criminalize human trafficking and smuggling; and prioritize human rights considerations when negotiating with Eritrean officials. See id. at para. 96.
Additional recommendations to the Eritrean government include the following:
- Consult with the Office of the High Commissioner for Human Rights (OHCHR) for technical assistance on implementing all the recommendations.
- Collaborate with the Special Rapporteur on the situation of human rights in Eritrea, and allow her to visit the country.
- Cooperate with other international human rights mechanisms. For example, follow-up on the Universal Periodic Review, implement recommendations made by UN treaty bodies, and submit overdue reports. See id. at 21-23.
Extension of Mandate of Commission and Special Rapporteur
In light of the Commission’s report, the Human Rights Council, on July 2, 2015, passed a resolution extending the mandate of the Commission as well as of the Special Rapporteur on the situation of human rights in Eritrea for one year. See UN Human Rights Council, Resolution on human rights situations that require the Council’s attention, A/HRC/29/L.23 (2015). The resolution also strongly condemned the human rights violations in Eritrea and reiterated many of the Commission’s recommendations to the Eritrean government. See id. at para. 6.
The Commission’s mandate is to continue investigating the “systematic, widespread, and gross” human rights violations in Eritrea, including whether or not these violations amount to crimes against humanity, with the goal of ensuring full accountability for these violations. In its resolution, the Human Rights Council requested that the Commission present an oral update to the General Assembly at its 71st session, and submit a written report to the Council at its 32nd session. The Council also urged the Eritrean government and the international community to cooperate with the Special Rapporteur and the Commission. See id. at 4.
Eritrea responded to the new resolution by stating that it “rejected politically motivated mechanisms and prescriptive reports and recommendations of the Commission of Inquiry and the Special Rapporteur on Eritrea.” Eritrea also emphasized its sovereignty and accused the authors of the draft resolution of trying to violate that sovereignty. [OHCHR Press Release: Human Rights Council Extension of Mandate]
For more information on the UN Human Rights Council’s special procedures, including on the Special Rapporteur on the Situation of Human Rights in Eritrea, please visit the IJRC Online Resource Hub.
The United Nations Committee on the Elimination of Discrimination Against Women (CEDAW Committee) is currently holding its 61st session from July 6 to July 24, 2015 in Geneva, Switzerland. During the session, the CEDAW Committee has been reviewing State reports submitted by Bolivia, Croatia, Gambia, Namibia, Saint Vincent and the Grenadines, Senegal, Spain, and Vietnam, on their implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). During the session, representatives from each State engage in a dialogue with CEDAW Committee members based on each State’s national report and responses to the list of issues, which consists of those topics the Committee had previously asked each State to address. The Committee will also review reports submitted by civil society organizations concerning the States’ implementation of the Convention. At the conclusion of the review process, the Committee will issue concluding observations for each State, containing its concerns and recommendations on each State’s implementation of the Convention.