UNIVERSITY OF LUSAKA

SCHOOL OF POSTGRADUATE STUDIES

Student Number LLMHRL20120732

Name Esther Mulendema

Due Date 24th April, 2020

Date Submitted 24th April, 2020

Time Submitted 14:00hrs

Signature

SHADED SECTION FOR LECTURER’S USE ONLY

Date Received

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0
 INTRODUCTION

The Human Rights Council was created to promote universal respect for the protection of all

human rights and Fundamental Freedoms.1 It plays an important role in monitoring and preventing

human rights abuses. This is done through mechanisms that the Human Rights Council has

employed to ensure that human rights are been enforced, implemented and to punish the

perpetrators that grossly violate them.2 Therefore, this paper will outline the different mechanisms

the Human Rights Council uses to bring about accountability in the international promotion and

protection of human rights. The paper will mainly focus on the Universal Periodic Review, Special

procedures, Complaint Procedure and Treaty bodies. Lastly, this paper will give some factors that

prevent the Human Rights Council from making effective accountability to the General Assembly.

THE CREATION OF THE HUMAN RIGHTS COUNCIL

This part of the paper gives a brief background of what prompted the creation of the Human Rights

Council which lead to the General Assembly establishing mechanisms that could curb human

rights abuses and violations. The United Nations Commission on Human Rights was the primary

inter-governmental policy making body for human rights issues before it was replaced by the

Human Rights Council in 2006.3 The main mandate of the Commission was to establish Human

Rights Standards and an International Bill of Rights. A system procedure was developed to

monitor, analyze and report on country specific issues.4 However, in the late 1990s-2000s

controversy developed over the human rights records concerning some of the Commission

1
UN General Assembly, Human Rights Council: resolution / adopted by the General Assembly, 3 April
2006,A/RES/60/251,available at: [Link] [accessed 24th April 2020]para
2.
2
ibid [3].
3
Veronique Joosten, From Commission on Human Rights to Human Rights Council, see
[Link] [accessed 20th April 2020].
4
ibid.

1
members who were perceived to be systematic abusers of human rights such as Pakistan, Sudan,

Uganda and were elected to serve in the Commission.5 This significantly affected the Commissions

credibility which lead to the proposal of a new Human Rights Council.

In 2005 on the 16th of September, an outcome document was established that a Human Rights

Council should be created to replace the Commission.6 The Human Rights Council which is a

subsidiary organ of the General Assembly is responsible for promoting universal respect for the

protection of all human rights and fundamental freedoms.7 One of the Council’s main objective is

to address situations of gross and systematic violations of human rights such as genocide and to

make recommendations thereon.8 Therefore, the General Assembly Resolution 60/251 resolved

that, “all mandates, mechanisms, functions and responsibilities of the Commission on human rights

were to be assumed by the new Human Rights Council as of June 19, 2006.”9 The Resolution

60/251, clearly states that the Council’s work should be guided on principles of universality,

impartiality, objectivity and non- selectivity.10 The Human Rights Council has mechanisms that

enable it to know the countries violating human rights and those that are not complying with its

principles. This has been done through the Universal Periodic Review, Special Procedures,

Complaints Procedure and Treaty Bodies.

5
ibid.
6
UN Doc. A/RES/60/1 (24th October 2005), Resolution adopted by the General Assembly on the 16 th September 2005,
World Summit Outcome, para 157-160 available at>
[Link]
7
The Resolution 60/251 (n 1) [2].
8
ibid [3].
9
ibid [6].
10
ibid [4].

2
 THE UNIVERSAL PRERODIC REVIEW

The Universal Periodic Review (UPR) was established because the Commission lacked effective

mechanisms to prevent human rights violators and to increase transparency of the body. 11 It is a

state driven process that is mainly concerned with the implementation of human rights on the

ground and it’s intended to complement the work of the human rights treaty bodies and not to

duplicate it.12 Unlike the Commission, the Universal Periodic Review allows the government to

raise questions and make recommendations about any other government’s human rights

behavior.13 The UPR mechanisms actually provides an advantage for human rights defenders on

the ground and internationally hold governments accountable to their promises. This shows a great

improvement on the council as compared to its predecessor (commission) that only scrutinized a

fraction of the UN member states during its existence.14 The Civil Society also plays an important

role in the review process through the promotion and protection of human rights under national,

regional and international levels.

Therefore, all victims of human rights abuses should be able to look to the Human Rights Council

as a forum and a springboard for action.15 The implication of this is member states that face gross

and systematic violation of human rights should be able to look up to council believing that it will

take up action and deal with the perpetrators. Although several governments and policymakers

support the UPR process, it’s not enough to fulfill the Councils mandate to address dire situations

11
Universal Periodic Review: Information and guidelines for relevant Stakeholders written submissions. UNHRC,
Institution-building of the United Nations Human Rights Council (18th June 2007) UN Doc A/HRC/RES/5/1, Para, 3(m).
12
Some of the objectives of the UPR include the improvement of the human rights situation on the ground, the
fulfilment of the sates human rights obligations and commitments and an assessment of the positive developments
and challenges it faces, sharing best practice among states this is the ultimate goal of the UPR.
13
(n 11) [3].
14
ibid [3].
15
Ban Ki-moon, UN Secretary-General, 12th March 2007, Opening of the 4th Human Rights Council Session.

3
involving gross and systematic violations of human rights. Another setback of the UPR is that in

as much as the council try’s to fulfill its mandate, its efforts are undermined and obstructed by

member states that seek to use these mechanisms for political, biased and subjective aims.16 This

means that the mechanisms are not used for the intended purpose they were created for which

results in some Member States shielding themselves from effective accountability of human rights

abuses. Therefore, the Council has employed independent experts known as Special Procedures to

examine human rights abuses in some of the most urgent situations around the world. 17 This is to

ensure that any gross violation taking place is documented by the universal system of independent

human rights experts.

SPECIAL PROCEDURES

Special Procedures is a mechanism that involves Special Representatives, Special Rapporteurs,

Independent Experts that examine, monitor and prepare reports on the situation of human rights

violations in specific countries or issues.18 The institution of the UN Special Procedures has been

described as a crown jewel of the UN human rights system. 19 This is because the appointment of

such rapporteurs represents an attempt by the United Nations to pierce the veil of the national

sovereignty of states, in order to handle serious cases of human rights violations worldwide holding

the perpetrators accountable. Thus, in practice the Special Rapporteurs perform a supervisory or

monitoring function and make recommendations that are not legally binding on states. In case of

country mandate holders they report on the situation of human rights violations in a given country

16
Felice Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body Systems (2007) 7(1) Human
Rights Law Review, p 109-139.
17
These include Iran, North Korea, Syria, Burundi, South Sudan, Sri Lanka, Burma, Cambodia, Libya and Eritrea.
18
Surya P. Subedi, Protection of Human Rights through the Mechanism of UN Special Rapporteurs. Human Rights
Quarterly, (Johns Hopkins University Press, 2011) p.33.
19
ibid 33.

4
that requires urgent response.20 For instance, in September 2006 the Human Rights Council

addressed the human rights abuses in Sudan, when the Special Rapporteur presented a report

following her first mission to Sudan in October 2005.21 The Special Rapporteur concluded that in

Darfur innocent civilians were continuing to suffer a number of human rights abuses including

arbitrary arrests and being held in communicant by security forces.22 It is sad to mention that up

to date the Human Rights Council is still trying to stop these violations which lead to adopting

Resolution 39/2223 in September 2018 to improve human rights in Sudan.24 One major weakness

of the institution of Special Rapporteurs is the absence of an effective follow up procedure

regarding submitted reports as well as communications sent to governments alleging violations of

human rights.25 The implication of this is that there are a number of violations that go unreported

because there is no effective system to follow up these violations or locate where they take place

which would undermine the effectiveness of the Council as a result many recommendations of the

special rapporteurs remain unimplemented. Another weakness is the lack of adequate resources to

follow up on their recommendations because they are limited.26

In as much as the Human Rights Council creates Special Procedures with time mandates, their

existence and continuation is dependent on the political will of states. This means that states can

20
Ibid 33.
21
Sima Samar, The Special Rapporteur on the Situation of Human Rights in the Sudan, report presented to the
Human Rights Council on September 27th 2006, retrieved> [Link]
sitution-human-rights-sudan-presents-report-human [accessed 12th April, 2020].
22
ibid.
23
Resolution 39/22 provides for technical assistance and capacity-building to improve human rights in the Sudan.
24
Nicolas Agostini, The UN Human Rights System and Sudan: A New Chapter? May 2 2019, retrieved > https:
[Link]/by-invitation/the-un-human-rights-system-and-sudan-a-new-chapter/ [accessed 12th
April, 2020].
25
Surya P. Subedi, et al (2011) The Role of the Special Rapporteurs of the United Nations Human Rights Council in
the development and promotion of international human rights norms, the international journal of human rights,
15:2, 155-161, DOI:10.1080/13642987.2011.537463.
26
ibid.

5
decide that their existence is no longer required due to the fact that these mechanisms are not

institutionally entrenched as the other UN mechanisms. The special representatives are also likely

to be subjected to harassment, intimidation, death threats and attacks in this context which makes

it very difficult for them to carry out their functions for the intended purpose.

In the same vein, Burundi’s actions up to date are inconsistent with the provisions of the UN

Charter in accordance with Article 55(1), 56 and 2(2) which impose a legal obligation on UN

Member States to cooperate in good faith and not obstruct the UN in the promotion of respect for

human rights and fundamental freedoms.27 In such instances it is vital that a preventive action is

taken by the General Assembly, Human Rights Council and member states to ensure that countries

like Burundi, Sudan that act inconsistently with the principles of UN and commit gross and

systematic violations are suspended. This is according to Resolution 60/251 which provides that,

“where a member state fails to meet the criteria laid down in the resolution, its fellow members have the

power to decide to have the countries membership suspended.” 28 The clear and objective grounds for

suspension are found under paragraph 8 of the Resolution which stipulates that, “members elected

by the council must uphold the highest standards in the promotion and protection of human rights

of the General Assembly Resolution 60/25129and by two-thirds majority of the members present and

voting may actually suspend the rights of the membership in the council of a member of the council that

commits gross systematic violations of human rights.”30 The import of paragraph 8 of Resolution

60/251 is that were sufficient evidence exists showing that a member state is committing gross and

27
The United Nations Charter 1945.
28
Joint NGO Letter: Suspension of Burundi from Human Rights Council, 26th October 2016, retrieved>
[Link] (accessed 12th
April, 2020).
29
UN General Assembly, Human Rights Council: resolution / adopted by the General Assembly, 3 April
2006,A/RES/60/251,available at: [Link] [accessed 24th April
2020]para 8.
30
ibid.

6
systematic violations, the General Assembly has the authority to suspend its membership. The

failure by the UN Member States to take action in the circumstances such as that of Burundi would

risk de-legitimizing the Human Rights Council and questioning the negotiated provisions of the

Resolution 60/251. This would amount to failure of accountability on the part of the Human Rights

Council to the General Assembly.

Conversely, the Council’s credibility is undermined when the Member States fail to comply with

the provisions of the Resolution by spearheading these gross violations and actively taking part of

human rights abuses. It is therefore, vital that the Council should first start by scrutinizing all its

member states to ensure that they are not the major culprits in violating human rights in order to

set an example for other countries. This is because some Member States would violate human

rights and use its position on the Human Rights Council to shield itself from accountability. For

instance, in the case of Saudi Arabia, it has committed gross and systematic violations of human

rights during its time as a Council Member by using its position to shield itself from accountability

for its violations in Yemen.31 Saudi Arabia has violated international humanitarian law, including

discriminate and disappropriate airstrikes that have killed and injured many civilians as well as

used internationally banned cluster munitions.32 Yet, despite all this there has been no

accountability in the sense that Saudi Arabia has failed to conduct credible, impartial and

transparent investigations into possible war crimes. It has used its position on the Council to

effectively obstruct the creation of an independent international investigation as it is been aided by

its allies contrary to what the UN High Commission for human rights has urged.33

31
Human Rights Watch, Suspend Saudi Arabia from the UN Human Rights Council, June 29 th
2016,retrieved>[Link] (accessed
12th April , 2020).
32
ibid.
33
ibid.

7
Therefore, to ensure effectiveness of the Council, countries such as Saudi Arabia, should have

their membership suspended until unlawful attacks come to an end and a credible and impartial

investigation meets international standards or agrees to cooperate with an independent

international inquiry into alleged violations.34 If there must be accountability, it is important to

note that those who serve on the council live up to the criteria that is outlined in the Resolution

60/251, notably which is to respect human rights and cooperate with the council. Otherwise, if

such serious violations are not addressed by the Council, it means it would be become part and

parcel of assisting these countries to get away with the crimes they commit resulting in poor

accountability to the General Assembly.

THE COMPLAINT PROCEDURE

The Human Rights Council Complaint procedure allows individuals and organizations to bring

complaints about gross and reliably attested violations of human rights to the attention of the

Council.35 The Complaint Procedure must be impartial, objective, efficient, victims-oriented and

conducted in a timely manner. Pursuant to Council Resolution 5/1, the complaint procedure was

established to address consistent patterns of gross and reliably attested violations of all human

rights and fundamental freedoms.36 This procedure is supposed to be victims –oriented and

conducted in a timely manner.37 In the case of Bernard Lubuto v Zambia,38 the author was

34
ibid.
35
HRC Complaint Procedure Form | Complaint | Human Rights Office of the High Commission on Human Rights,
Human Rights Bodies-Complaints Procedures
[Link] (last visited April 10th
,2020)
36
UN Human Rights Council, Institution-building of the United Nations Human Rights Council,18th June 2007,
A/HRC/RES/5/1, available at: [Link] [accessed 23 April 2020].
37
Therefore, a communication of a violation of human rights is admissible unless it is manifestly ill-founded, does
not contain the factual descriptions of the alleged violations or language is abusive etc.
38
Communication No. 390/1990.

8
sentenced to death on 4th August 1983 for aggravated robbery and when he appealed, the Supreme

Court dismissed his appeal. The author claimed that the Trial was unfair since the judge had

accepted all evidence against him yet a careful examination would have shown discrepancies in

the statements made by the witness. Thus, the death sentence imposed on him was

disproportionate. The author took the matter to the Human Rights Committee who held that the

facts before it disclosed a violation of Articles 639 and 1440 of the International Covenant on Civil

and Political Rights (ICCPR). This illustrates how the Human Rights Committee acts on

communications from individuals who claim that a state has violated their rights.

THE HUMAN RIGHTS TREATY BODIES

The moment a state ratifies a human rights treaty,41 it simply agrees to be bound by the terms of

that said treaty and has an obligation to comply in good faith. 42 This means that the human rights

treaties create a specific legal obligation on the states that are party to the treaty and in return the

state ought to respect, protect and fulfill the rights protected in these treaties. The human rights

treaties have a corresponding treaty body which comprises of independent experts that monitor

implementation of the treaty to ensure that all state parties are actually taking necessary action to

implement the rights in their country. The UN treaties also require states to submit reports to the

treaty bodies every few years in which they explain what efforts they have taken in implementing

39
Article 6 of the ICCPR provides that, every human being has the inherent right to life and this right shall be
protected by the law. No one shall be arbitrary deprived of his life.
40
Article 14 of the ICCPR provides that, all persons shall be equal before the courts and tribunals and everyone
shall be entitled to a fair and public hearing by a competent, independent tribunal established by law.
41
OHCHR, The Core International Human Rights Treaties, [Link]/en/hrbodies/icpr/pages/[Link]
A treaty also called conventions or covenants are written agreements between states where each state party to
the treaty that has ratified the treaty according to its domestic legal procedures for entering into an international
agreement agrees to be bound by the provisions of the treaty.
42
Vienna Convention on the Law of Treaties, Article. 26, 1155U-NT.S.331 (1983).

9
the treaty within its own jurisdiction.43 This requires the state to conduct a self-evaluation on the

impact that the laws and policies have had on giving full effect to the rights protected in the treaty.

The treaty body reviews the information it receives from the state and then it sends a list of issues

to the state party asking questions or for additional information from the state.44 During the treaty

body’s session, the treaty body will have an interactive dialogue with the state delegation though

the civil society does not take part during these sessions, they observe the session and participate

in country and thematic briefings. At the conclusion of the treaty body’s session, treaty body

experts adopt concluding observations that acknowledge progress made as well as express

concerns over situations where the state is not in compliance with the treaty offering

recommendations on what steps the state needs to take to improve implementation of the treaty

within that states jurisdiction such as changes to law, policies or programs 45. However, this is not

effective where the governments refuse to engage in the dialogue process in that this would mean

failure to hold accountable the perpetrators guilty of such violations.

The Treaty bodies also receive complaints by one state party concerning allegations of human

rights violations by another state party, called an inter-state complaint. A number of treaties such

as the Article 11 to 13 of the ICERD,46 Article 21 of CAT47 and Article 74 of CMW48 contain

provisions that allow state parties to complain to the relevant treaty body about the alleged

43
Assessing the United Nations Human Rights Council, retrieved>
[Link] united-nations-human-rights-council/ (accessed 12th April
2020).
44
ibid.
45
ibid.
46
Article 11-13 of ICERD provides a mechanism for states to complain about violations of the ICERD made by
another state.
47
A state party to this convention may at any time declare under this Article that it recognizes the competence of
the committee to receive and consider communications to the effect that a state party claims that another party is
not fulfilling its obligations under the convention.
48
It provides for a mechanism for states to complain about violations of the convention made by another state.

10
violations of the treaty party of another state. However, it has been argued that this procedure has

never been used.49 Both the complaining state and the state complained against must be parties to

the treaty concerned and should have declared acceptance of the competence of the committee in

charge of the implementation of the treaty to receive and consider such complaints.

FACTORS THAT AFFECT THE HUMAN RIGHTS COUNCIL

There are some factors that may limit the Human Rights Council ability to deliver effectively on

its mandates. This includes the erosion of the council’s credibility when states responsible for gross

and systematic rights violations are elected as members.50 The Councils credibility is affected

according to how well it responds to the needs as well as demands of the human rights holders and

it’s undermined when member states don’t respect the criteria lead down in Resolution 60/251.

Take for example, Iraq is seeking to be re-elected to a seat on the UN’s Human Rights Body and

yet, it is one of the countries that commits serious human rights violations including; enforced

disappearances, human trafficking, torture, arbitrary detention, child labor and many more. If it is

elected it means, it’s likely to use its position to shield itself from scrutiny. This has resulted in

countries like the United States withdrawing from the Human Rights Council alleging that for

many years it has protected human rights abusers who continue to serve and be elected on the

council making it easier to escape scrutiny. Secondly, the lack of cooperation with regard to the

Council and its mechanisms including attacks on special procedures mandate holders is worrisome.

In order for accountability to seen, the Human Rights Council must cooperate with the national

actors as well as civil society so that they can help in ensuring that there is transparency. However,

49
OHCHR, The Core International Human Rights Treaties, [Link]
International Human Rights Treaties [Link], see [Link]/en/hrbodies/icpr/pages/[Link].
50
Human Rights Watch, Strengthening the UN Human Rights Council from the Ground Up, retrieved
[Link] (accessed 11th April,2020)

11
it is a pity to mention that sometimes this cooperation becomes so problematic when the state

parties are actually the ones involved in human rights abuse and violations thus shielding their own

acts.51 Thirdly, attempts by some governments to limit participation of human rights mechanisms52

In some governments special representatives may not be allowed to monitor the human rights

abuses and the government fully supports such decisions. For example, in 2018 the OHCHR team

was expelled from Nicaragua when the Human Rights Council representatives published a report

on the patterns of human rights violations and abuses committed in the country and till date the

OHCHR continues to be barred from monitoring the human rights situation on the ground.53 This

means no functioning independent human rights body will be left in this country as well as scrutiny

for serious human rights violations.

Therefore, one way that the Human Rights Council can actually be effective is by placing pressure

on member states to comply with the human rights and obligations. Most of the states that abuse

human rights often ignore the Councils recommendations which results in little or no change on

the ground in relation to crisis situations. There must be a change to the councils working culture

by ensuring that those that violate human rights are punished otherwise should it continue in this

direction it means undermining the entire credibility and accountability of the Council.

51
ibid.
52
Human Rights Watch, Strengthening the UN Human Rights Council from the Ground> retrieved
[Link] (accessed on 3rd March,
2020).
53
Nicaragua Orders Expulsion of UN Human Rights Delegation, August 31st 2018, retrieved> [Link]
reuters-com/article/amp/idUKKCN1LG2CS?amp_js_v=a2&amp_gsa=1&usq(Accessed 12th April,2020).

12
 CONCLUSION

In summary, the paper outlined the mechanisms the Human Rights Council employs to bring about

accountability in its efforts to promote and protect human rights internationally. It demonstrated

how the Universal Periodic Review, Treaty Bodies and the Complaint Procedures play an effective

role in ensuring that Member States comply with the provisions of various resolutions. It has

shown that there is an urgent need for the Human Rights Council, Member States and General

Assembly to cooperate by preventing gross and systematic violations of human rights especially

by Member States as this sets a bad example to non –state parties. The paper further discussed the

difficulties that the Human Rights Council is likely face in ensuring accountability to the General

Assembly such as the lack of cooperation by Member States as well as selectivity in some countries

which results in the actual perpetrators of the crimes escaping scrutiny just to mention a few. These

problems faced by the Council are likely to affect its credibility and transparency making it unable

to achieve the purpose it was created for. In as much as the Human Rights Council has all these

mechanisms in place to ensure that violators of human rights are held accountable, the paper has

demonstrated that human rights violations still go on in member states to an extent where certain

member states refuse to make reports of their human rights violations. Therefore, there is more

that needs to be done such as the Council responding robustly to the findings of the report that are

presented by Special Procedures, Complaints Procedures as well as the Universal Periodic Review.

By so doing the Human Rights Council would be enhancing its monitoring, documentation,

analysis and public reporting on the human rights situations that State Party’s face and thus,

administering effective accountability to the General Assembly.

13
BIBLIOGRAPHY

Primary Sources:

International Instruments

The Vienna Convention on the Law of Treaties, (1983)

The United Nations General Assembly Resolution 60/251

Secondary Source:

Book

Lori Damrosch, et al., International Law: Cases and Materials, (4th ed.2001)

Articles

Katherine Short, From Commission to Council: Has the United Nations Succeeded in Creating a Credible Human
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(accessed 12th April, 2020)

Schaefer, B. The UN Human Rights Council is not enough: Time for a New Approach to Human Rights. (Washington:
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Surya P. Subedi, Steven Wheatley, Amrita Mukherjee & Sylvia Ngane, (2011), The Role of the Special Rapporteurs
of the United Nations Human Rights Council In the development and promotion of international human rights norms,
the international journal of human rights, 15:2, 155-161, DOI:10.1080/13642987.2011.537463

Thesis & Reports

Battise, Leilani F., The Crisis in Darfur: An Opportunity for the United Nations to reform its Status as Standard Bearer
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Samar Sima, The Special Rapporteur on the Situation of Human Rights in the Sudan, presented her report to the
Human Rights Council on September 27th 2006.

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14
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15