“Human Rights Situation in Qatar”-at the side event of the 49th Human Rights Council Session

 Thank you very much for the invitation to discuss the human rights situation in Qatar. To keep things simple, I’d like to describe three reasons for optimism and three for pessimism.

I’m optimistic about the human rights situation because in 2018 Qatar finally signed the International Covenant on Civil and Political Rights, and the Covenant on Economic, Social and Cultural Rights, the two pillars of the so-called International Bill of Human Rights. That’s an important step. The first ICCPR review concluded earlier this month, and the ICESCR review is in progress.

My second ground for optimism is Qatar’s intense engagement with the UN. For instance, in the run-up to the World Cup, Qatar invited 10 Special Rapporteurs for country visits in quick succession. I think that’s unprecedented.

The third reason for optimism is that Qatar’s engagement with UN human rights treaties and mechanisms over the last 4 years has produced a huge body of perfectly clear and detailed criticisms and recommendations for improvement. The human rights mechanism is working and we know what needs to be done.

Which brings me to the first reason for pessimism. The defining feature of Qatar’s engagement with human rights law and bodies has been instrumentalisation, not to say cynicism. If you look at most State replies to UPR or human rights treaty reviews, more often than not you’ll find genuine attempts to constructively address criticisms and improve. This is not the case with Qatar. Look at the first ICCPR review concluded this month. The Committee on Human Rights pointed out that Qatar’s reservations are invalid, the death sentence and widespread arbitrary detention violate jus cogens norms, that non-Qatari spouses are unprotected, that the Qatari National Human Rights Committee is wholly dependent on the Emir, that civil society does not participate in preparing human rights compliance reports, that discrimination against women and girls, and against migrant workers, remains systemic, and so on. The vast majority of responses by the Qatari delegation were simple repetitions of the country’s original report, citing domestic legislation that both UN country visits and a vast number of NGOs have already pointed out either clash with international human rights law, or are in alignment, but are not effective.¹ Formulaic repetition is not engagement, especially when contrasted with most countries’ replies to human rights treaty reviews.

The same applies to the aforementioned 10 invitations for country visits by Special Rapporteurs, initiated by Qatar in the run-up to the World Cup. The country visit reports by the Working Group on Arbitrary Detention, the Special Rapporteur on Racism, the Special Rapporteur on Education, and so on, were devastating. The WGAD noted that Qatar’s treaty reservations are invalid, that Qatar keeps large numbers of people in arbitrary detention in violation of jus cogens, customary international law and treaties, while the Special Rapporteur on Education found systemic discrimination, lack of freedom of religion, and violation of the fundamental right to education. In its response, Qatar ignored the WGAD’s findings, and berated the Special Rapporteur on Education for not repeating the material they had given her. It’s an extraordinary document, and the contrast with most States’ comments on Special Rapporteur country visit reports is striking.² After these failures to obtain any validation of its human rights record, Qatar cancelled or indefinitely postponed 4 of the 10 country visits.³ That is instrumentalisation.

The second reason for my pessimism is Qatar’s refusal to respond to constructive and detailed, actionable criticism from UN human rights bodies, even if they signal that Qatar is violating peremptory norms and non-derogable, fundamental human rights. I mentioned some Special Rapporteurs and the ICCPR review, and that’s the tip of the iceberg. Look at recent review procedures by the Committee on the Elimination of Discrimination against Women, the Committee against Torture, the latest UPR, and so on.⁴ You’ll find that total neglect, or at best formulaic verbatim repetitions of the very statements that UN human rights bodies and NGOs are commenting on, are the norm, not the exception, in Qatar’s case. And if you place this consistent pattern of non-engagement or fake engagement into the context of most other States’ interactions with human rights law, the contrast is astonishing.

The third and last reason for pessimism is not about individual violations of human rights in Qatar, but about wide and deep institutional corruption. Institutional corruption is a legal doctrine developed at Harvard Law School between 2009 and 2016, and has now turned into a global agenda of legal research and practice.⁵ The basic insight is that in conventional legal definitions of corruption, such as those embodied in UN treaties, bad people do bad things. In institutional corruption, by contrast, not only bad people do bad things, but good people cannot do the right thing either, because of institutional misalignments and constraints, for instance improper financial dependence or incentives. Institutional corruption always becomes visible and leads to widespread, damaging loss of public trust, more so than the corruption of individual officials. Classic examples include the ‘revolving door’, whereby officials abuse their legislative influence because their only real option after service is joining the private corporate world, which they prepare for while in government. Conflicts of interest that are ethically doubtful but at the time legal is another example. For instance, the ICJ has just recently began to restrict judges’ ability to take on highly profitable arbitration cases. The point is that in conditions of institutional corruption, even when rulers, governments, geopolitical and economic situations change, there is still zero or severely limited scope for improvement, because improvement would require dismantling and replacing embedded practices and institutions.

Let me cite three examples of institutional corruption in Qatar’s human rights environment: treaty reservations; the judiciary; and the National Human Rights Institute.

In some ways, treaty reservations are the most obvious case. UPR, the Committee on Human Rights, Special Mandates, and many other bodies and mechanisms have drawn attention to the invalidity of Qatar’s reservations to its human rights treaty obligations. Yet Qatar persists in claiming these unlawful excuses to uphold human rights. As time goes by, this persistence turns into entrenched opposition and raises the risk of crises, for instance in cases where Qatar does invoke its unlawful reservations against its human rights obligations.⁶

Secondly, as many UN bodies have noted, Qatar’s judiciary is not independent. The Emir can unilaterally nominate, appoint, and dismiss judges and prosecutors. The latest report by the Special Rapporteur on the independence of judges details numerous cases of pressure by the Qatari executive on the judiciary, particularly concerning potential political rivals. The Special Rapporteur also noted allegations that the public prosecution is directly involved in fabricating charges and tampering with evidence; and highlighted that 33 judges resigned in protest over the Qatari executive’s continued interference. In its most recent periodic report, the Committee against Torture called on Qatar to “adopt all measures necessary to establish and ensure the independence of the judiciary, including by guaranteeing their tenure in office and severing administrative and other ties with the executive branch, in conformity with international standards”. Year after year, Freedom House consistently reports the Emir’s control over the judiciary, and further evidence of this was presented by several States during Qatar’s latest UPR.

The same applies to Qatar’s National Human Rights Committee, which received the highest rating from the UN’s Global Alliance of National Human Rights Institutions. Yet GANHRI’s report on QNHRC notes that all members are appointed by Emiri decree; their tenure and funding depends on the Emir; the selection criteria are underdefined; transparency and meritocracy, even the real participation of civil society, are neither mandated nor guaranteed; and conflicts of interest are unregulated. Other States’ NHRIs with only some of these problems have not received the highest rating, or have not even been approved. The UN’s calls on Qatar, for instance in the UPR, to correct these major institutional design flaws of its NHRI have been fully and consistently ignored. In fact, current QNHRC members are former Government officials. QNHRC was due to be re-accredited in 2019, but right after the UPR criticisms of its independence, GANHRI elected the Chairman of QNHRC as GANHRI’s own Vice-President and Secretary General. QNHRC’s regular re-accreditation was then, for unexplained reasons, postponed indefinitely, and it recently received the highest rating again, though not a single UN or NGO criticism was addressed.⁷

In my view, the human rights treaty reservations and the undue and improper dependence of the judiciary and the National Human Rights Institute are more worrying than individual cases of egregious human rights violations. Even though 33 Qatari judges resigned in protest, and every UN human rights body and mechanism have repeatedly pointed out these three problems, at the moment it is difficult to have hope for the domestic legal and political reform necessary to make these three cornerstones of human rights protection in Qatar real. As time goes by, these manifestations of institutional corruption risk deepening and entrenching Qatar’s inability and reluctance to honour human rights law.