At the end of 2020, the Office of the United Nations Office of the High Commissioner for Human Rights (“OHCHR”) launched a new dedicated website enabling victims of human rights violations to submit their submissions to the Human Rights Council (“HRC”) Special Procedures Mandate Holders directly online, via a new uniform complaint procedure.1 If this new online complaint procedure constitutes a real and welcome improvement, many other serious impediments to effective access to justice before the Special Procedures (“SP”) mandate holders remain in the current functioning of the SP mechanism. In what follows, Just Access takes account of this new development, assesses its merits and flaws, and proposes some solutions to improve access to justice for victims of human rights abuses, violations and international crimes worldwide. This blog post suggests possible venues to make it easier for victims of human rights violations to directly address Special Procedures mandate holders in order to improve the chances to make their cause known at the international level, assuming they otherwise fulfil the requirements applicable to submissions before SP mandate holders. Just Access in particular suggests enabling collective claims before the SP mandate holders. This is currently only legally possible, but needs substantial technical improvement to provide an effective option for large-scale victims of mass or systematic human rights and/or international law violations to make their voice heard at the international level.
The HRC SP mandate holders have for several decades now fulfilled an important mission at the international level by bringing to the attention of the global public opinion the perpetration of international human rights abuses or violations in a preventive fashion, or through information on their actual perpetration by States and non-State actors alike. This important contribution has materialised throughout the years, despite the fact that SP are based on various and sui generis mandates without a uniform procedural framework applicable directly to their mandates and activities. Moreover, they do not have competences to render binding decisions and they lack the means to compel the cooperation of State and non-State actors. That said, one particularly strong symbol of their impact globally are the press statements and other public declarations that SP mandate holders issue regularly to bring to the foreground important violations of international human rights law, under the famous blue stamp of the United Nations. In 2020, mandate holders have issued 320 press releases “raising awareness and voicing concerns regarding a range of human rights issues, including individual cases.”2 The aims of the dedicated website of the OHCHR for communicating submissions to the SP mandate holders are threefold: (i) “draw the attention of Governments and others on alleged human rights violations;” (ii) “ask that violations are prevented, stopped, investigated, or that remedial action is taken;” and (iii) “Report to the Human Rights Council on communications sent and replies received, therefore raising public awareness on individual, and group cases as well as legislative and policies developments they have addressed in a given period”.3
In general, SP mandate holders focus on specific themes or specific countries. According to the Report on the activities of special rapporteurs, independent experts and working groups of the special procedures in 2020, there are 44 thematic and 11 country-specific mandate holders active.4 Thematic Special Procedures deal with grave or/and urgent global issues, such as torture, forced disappearance, the right to freedom and assembly, prevention and peacebuilding, migration, climate change, new technologies, and the corona disease.5 In parallel, there were several country-specific SPs, as in the case of Syria, Yemen, Myanmar or Sudan, whose mandate was terminated in 2020. The very term, “special procedure”, refers to a specific feature of this institution: their mandate is often the product of a particular set of political and legal circumstances that require or support the monitoring of a human rights-related situation or issue, which can sometimes be renewed for decades, or last only for a relatively short-lived mandate. This makes the existence and the understanding of the SP functioning particularly apt for victims of human rights abuses and violations, which are in theory able and invited to submit complaints directly to SP mandate holders but who are in practice always represented by some NGOs, lawyers or other (mostly benevolent) representatives.
The history of the United Nations institutional landscape in the fields of international human rights law is filled with many ups and downs, since States are mostly reluctant to see their HR-record monitored by international actors, especially when issues are raised by victims. The SPs of the HRC have in particular been the object of intense campaigns to reduce or prevent them from accomplishing what is nonetheless still their main role in the United Nations system: promoting and raising the alarm with respect to the implementation of international human rights law (“IHRL”). On the other hand, States have also pushed for the creation of new SP mandate holders, including multiple times by African and Asian States.6 The lack of procedural clarity about the missions, prerogatives and activities of SP mandate holders might have contributed to the relative distrust with which SPs have been received by some States and other organisations; but there have been some major steps to reform their functioning since the first SP have been set up.
In particular, there have been many attempts and projects to reform how SPs procedurally work, which is crucial for the effective functioning of a special type of international HR institution that is meant to facilitate access to justice for victims of HR violations and to raise awareness about their situation worldwide. However, most of those efforts and projects of reform have led to mixed results, regardless of the reasons that motivated them. Indeed, they have not prevented SP mandate holders from expanding their range of operations, even when they struggled with tight budgets; they have not solved the dire lack of personal support for SP mandate holders and their staffs; and they have not significantly improved the lack of means to receive effective cooperation by States and non State-actors accused of the perpetrations of serious violations of IHRL, or even international crimes. These realities partially explain why some international lawyers have qualified the historical institutional evolution of SP as a “process of learning by doing,”7 since special procedures are almost the product of a series of accidental and incremental evolutions, which have taken place without constant or clear institutional or State support.
Therefore, the HRC Special Procedures are not treaty-based and they do not constitute a harmonised body. This explains the particular importance of individualities behind the various SP mandate holders, which have sometimes attracted criticisms for taking advantage of their non-paid mandates for their own benefit. Indeed, there are issues regarding either some excesses committed by individual SP mandate holders, such as the over-personalisation of their mandate, but they should not hide the objectively difficult conditions that affect how they can fulfil their mandates: scarcity of resources, political pressures,8 lack of cooperation of State- and non-State actors,9 and so forth.
Positive trends are nevertheless identifiable, notwithstanding repeated attempts by some States to reduce SPs’ effectiveness, the repeated denial of favourable conditions to improve their working conditions, and the lack of institutional and procedural stability of the various SP mandates that are often quickly terminated when UN Member States withdraw their support. For instance, while SP mandate holders operate formally without strictly defined working methodologies and methods, over the last years a process of reiteration and collective institutional learning and consolidation has helped SP mandate holders to strengthen the procedural approach of their mandates by following up on the experiences of some of their predecessors or other mandate holders. Another particularly important trend is the increasing cooperation among SP mandate holders and the development of diverse strategies to bring about cross-cutting issues on the international plane. In this regard, the Coordination Committee of Special Procedures assumes a significant role,10 which includes “enhancing the effectiveness and independence of mandate-holders and facilitating their work”; and also “proactively identifying issues of concern to groups of mandates and facilitating joint action on cross-cutting issues or issues of shared concern”.11 Moreover, the Coordination Committee acts as catalyst for SPs’ collective actions, including by increasing their visibility and facilitating them through open letters, press releases and statements.12
One example for which Special Procedures’ collective actions can make a difference concerns the dire situation in Myanmar, wherein a military junta committed a coup after the democratic election of a civilian government. In that context, multiple violations of international law and serious human rights abuses have been committed by the military, including extra-judicial killings, acts of torture, mass arbitrary detentions and systematic repression or civil and political rights.13 On 26 February 2021, several SP mandate holders issued a common statement on Myanmar calling the military junta to restore democracy and to allow people to protest and express themselves. Signatories include the SP on the right to peaceful assembly and association; the SP on the situation of human rights in Myanmar; the SP on the rights of indigenous peoples; the SP on extrajudicial, summary or arbitrary executions; the SP on the promotion and protection of freedom of opinion and expression; the SP on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the UN Working Group on Arbitrary Detention, the UN Working Group on Enforced or Involuntary Disappearances; and the UN Working Group on human rights and transnational corporations and other business enterprises.14
Another example concerns the current situation in Columbia, where hundreds of demonstrators and persons have been killed by the national security forces in the context of peaceful protests against a planned fiscal reform in the country.15 Several SP mandate holders have issued a common statement to condemn the governmental crackdown on peaceful protests and called for a thorough and impartial investigation.16 Yet, despite the current growing practice of collective actions by SP mandate holders, and if submissions to SP mandate holders can in legal principle be done on the behalf of a group, the current system to file submission is operated on the basis of criteria that unduly favours individually drafted complaints. As we will argue in the second part of this post, further steps need to be taken to effectively ensure real possibilities to raise collective complaints. This development of the submission system before SP mandate holders could then reinforce the current trend among them to pool their resources and act collectively for denouncing concerning or grave situations in the world.
The launch of a new online platform for submitting complaints could then be seen as a major step in the institutional history of the HRC Special Procedures in that direction, if this complaint procedure was really uniform, user-friendly and effective at bringing victims complaints. This is not currently the case given, for instance, that complaints even get lost. The recent launch of the online platform is an important step in the right direction, which however leaves major problems unsolved. This post sheds light on some improvements by this new online complaint procedure and on its major remaining flaws from a practical, victim-centered perspective (I). In a second step, the proposal will be made that a bold but necessary change to the existing complaint system before SP mechanisms should be planned and enacted by providing the possibility to enable collective complaints for groups of individuals which are producing information and evidence of collective harm suffered in violation of international law (II).
I. Improvements and flaws of the new online form to submit complaint before the HRC Special Procedures Mandate-Holders
In 2020, HRC SP “mandate-holders transmitted 681 communications, 600 of which were sent jointly, to 132 States and 76 non-State actors. The communications covered 1,296 individuals, 307 of whom were identified as female. A total of 433 replies, of which 330 were substantive replies, were received in 2020 (this includes replies to communications sent before 2020). A total of 384 replies to communications sent in 2020 were received, of which 338 (48.46 per cent reply rate) were substantive replies. Some communications received more than one reply (A/HRC/46/61/Add.1 chaps. IX and X).”17
The procedure applicable to submitting complaints to SP mandate holders is based on several requirements. These were formalised through the adoption in 2007 of a HRC Code of Conduct for SP mandate holders.18 In 2008, another UN document summarised some of the main requirements applicable to communications sent by persons and groups alleging to be victims of HR violations:
“38. Information may be sent by a person or a group of persons claiming to have suffered a human rights violation. NGOs and other groups or individuals claiming to have direct or reliable knowledge of human rights violations, substantiated by clear information, may also submit information so long as they are acting in good faith in accordance with the principles of human rights and the provisions of the UN Charter, free from politically motivated stands. Anonymous communications are not considered. Communications may not be exclusively based on reports disseminated by mass media.
39. Allegations should ideally contain clear and concise details regarding the name of individual victim(s) or other identifying information, such as date of birth, sex, passport number and place of residence; ethnic or religious group when appropriate; the name of any community or organization subject to alleged violations; information as to the circumstances, including available information as to the date and place of any incident(s); alleged perpetrators; suspected motives; contextual information; and any steps already taken at the national, regional or international level in relation to the case.”19
An interesting feature of the new online portal to submit complaints to SP mandate holders is that individual complaints can be submitted with regard to a specific human rights violation, but also to a “bill, legislation or policy”. The new portal also makes it possible to add information to a previous submission. Concerning human rights violations, it can refer to an individual, a group or community, or to civil society organisations who allege to be suffering of violations of IHRL. There is also the option of using the individual complaint for multiple victims, and an Excel sheet can be uploaded for large numbers of victims. Just Access underlines that these are all positive developments.
Nevertheless, there are important practical limitations of space in this new complaint form, which restrict the possibility to effectively raise collective submissions for persons who are victims of multiple, mass or systematic violations of human rights and international law. There are only 2,000 characters available to describe the facts relating to a violation, and there are also further limitations in each of the boxes where one can include the text, sometimes actually not even clearly indicating what this limit is. In addition, one can only include a maximum of three attachments to one submission, and there is a size limit to these attachments (ca. 2 MB or so). This is not very practical for explaining and conveying even the most basic facts regarding allegations of serious HR abuses and violations, especially for victims of mass or systematic violations of human rights and international law who are willing to raise a collective complaint (see Part II of this post). If these practical flaws appear trivial, they in fact significantly limit possibilities to raise collective complaint in the current online system. For a clear and simple example, one can roughly compare the procedural requirements for information relating to the online platform for submitting complaints to the SP mandate holders with the very limited space available to attach evidence and information in a digital format. The following requirements need to be fulfilled by a complaint to be acted upon by one or several SP holders:
- “the communication should not be manifestly unfounded or politically motivated;
- the communication should contain a factual description of the alleged violations of human rights;
- the language in the communication should not be abusive;
- the communication should be submitted on the basis of credible and detailed information;
- the communication should not be exclusively based on reports disseminated by mass media.”20
The online complaint form for UN SP procedures constitutes an important improvement on the previous situation, in which specific UN SP mandate holders failed to provide the public with most basic information about their activities and, even worst, on how to actually reach them.
If the general availability of relevant information on the general functioning and activities of individual UN Special Procedures mandate holders remains an important issue, especially concerning country-specific Special Procedures which barely provide on their websites the most basic information about their activities,21 the introduction of an online complaint form is an important improvement in this regard. Previously, dedicated websites for country-specific Special Procedures, for instance, seldom provided any guidelines on submitting complaints.
The introduction of the online complaint form does not solve other fundamental issues afflicting the very accessibility of information for persons and groups that need to submit a letter of allegations to one of the dozens UN SP mandate-holders in activity. For instance, Evlira Dominguez-Redondo has highlighted these multiple barriers negatively affecting access to justice for victims willing to raise complaints before SP mandate-holders’:
“This is an outcome noticeable to those already familiar with Special Procedures rather than a feature that will likely prove useful to those engaging with them for the first time. Potential users of Special Procedures, including first and foremost victims of human rights violations that can benefit from their intervention, must navigate a metaphorical and literal web of reports, online links, and forms to familiarize themselves with basic information concerning their modus operandi. The quantity and quality of information provided and the format used to present information vary significantly between mandate holders with no correlation to divergences in the practical implementation of methods of work. […] [A] more significant problem that arises in this context is the creation of unnecessary barriers to access Special Procedures that add multiple sources of information about the same mandate, depending on fragmented understandings of the mandates and resources as interpreted by individual mandate holders. It is worth remembering that this occurs in the context of an already complex web of mechanisms in which unity has largely depended on mandate holders’ willingness to coordinate activities among themselves.” 22
While the vagueness of the mandate of HRC Special Procedures is notable for several reasons, for instance for allowing mandate holders to expand their remit,23 a more uniform and inclusive complaint procedure would enhance and strengthen the functioning of their office. As it stands, the dedicated website to submit complaint to SP mandate holders is a major obstacle to creating a uniform procedure. Some SP mandate holders are not even included in the existing system.
II. The way towards a submission procedure before the HRC SP effectively allowing for collective complaints
In face of the practical and procedural flaws that still affect the submission system to SP mandate holders, Just Access lays out in the following section how despite the already existing possibility to raise complaints for multiple persons, the online application form remains still based on individual complaints (A). Next, this post will shed light on the fundamental stakes behind those procedural and practical difficulties which could be alleviated by a more effective collective complaint mechanism (B.), before we address some further challenges which can be generated with a new system better designed to properly address collective claims (C.).
A. The application form is individually based, although one specific case can actually represent multiple (and more or less similar) HR violations
The UN website for submitting submissions to the SPs is explicitly mentioning the possibility that communications in this context address “allegations of violation of the human rights of a group or a community” as well as “allegations that a bill, a law, a decree, a policy and/or a practice is not in compliance with international human rights law and standards.”24 This possibility is not new, but it marks a departure from previous anxieties voiced by States, which have long been opposed to an abstract system which would not be connected to the situations of concrete and actual victims. However, let us recall that the current possibilities to raise collective actions via the submission system before SP mandate-holders does not mean going back to a more abstract system decoupled with the consent of the victims thereby represented, which is still required at the moment of submitting a complaint to them. This requirement applicable to all UN Special Procedures mandate holders is identifiable among others in Article 9(d) of the 2007 HR Code of Conduct for Special Procedures Mandate Holders:
“The communication should be submitted by a person or a group of persons claiming to be victim of violations or by any person or group of persons, including non-governmental organizations, acting in good faith in accordance with principles of human rights, and free from politically motivated stands or contrary to, the provisions of the Charter of the United Nations, and claiming to have direct or reliable knowledge of those violations substantiated by clear information;”25
The only case where the consent of victims is not required is in cases specifically dealing with deceased victims and persons who are victims of enforced disappearance, which make it impossible to obtain their consent in the first place. For that reason, existing possibilities to bring collective action will still be based on evidence/information received by SP mandate holders, and the consent of the victims represented in the complaint is in any case required, except for the afore-mentioned exception.
Despite the fact that the new UN online platform already provides for possibilities to raise complaints in the name of several victims or on the behalf of groups and communities, the current system suffers from several major flaws.
The fact that UN SP mandate holders have to deal not only with purely individual allegations of human rights violations but also with allegations emanating from groups does not constitute a new reality: it constitutes in fact an established practice reflecting positive international law, which has long considered collective actions. This strong trend is reflected in the aforementioned practice, on the side of SP mandate holders, who increasingly take positions collectively whenever a situation involves multiple violations falling within their (broad) mandates.
For instance, the 2008 Manual of the Operations of Special Procedures of the Human Rights Council contains many instances when SP mandate holders dealt with human rights violations suffered by groups of persons. This Manual provides for the requirement that SP mandate-holders “take the measures necessary to monitor and respond quickly to allegations of human rights violations against individuals or groups, either globally or in a specific country or territory, and to report on their activities”26 It also set the general requirement that SP mandate-holders effectively deal with collective submissions whenever it falls within their mandate and satisfy to applicable procedural and substantial requirements in that context:
“Communications may deal with cases concerning individuals, groups or communities, with general trends and patterns of human rights violations in a particular country or more generally, or with the content of existing or draft legislation considered to be a matter of concern. Communications related to adopted or draft legislation may be formulated in various ways, as required by the specificities of each mandate.”27
Just Access’s proposal to reinforce existing possibilities to raise collective actions before SP mandate holders must be understood against the backdrop of the high stakes relating to access to international justice for victims of international law violations as well as serious and grave human rights violations.
B. What is at stake behind the goal to ensure a more effective submission mechanism for collective complaints?
Just Access supports revamping the submissions system such that it will effectively ensure the possibility for collective submissions to be filed before the SP mandate holders. Such a move would positively affect the possibility of peoples across the world to make their voice heard, including the currently urgent cases of Myanmar and Columbia. Conversely, possible fears that deepening this already existing trend might lead to overwhelming SP-holders can be mitigated on the basis of actual instances of legal systems where the admissibility of a request can also be treated collectively – such as in the pilot judgments system in the system of the European Convention on Human Rights,28 or the class action system in the US legal system.29 Going in that direction will not only in practice improve the new submission system to SP mandate-holders, but also legally fill a gap since the afore-mentioned systems do not exist at the UN level even if they are directly relating to the mandate of the UN.
Such a development, which would involve overhauling the existing UN online portal to submit complaints to SP mandate holders, would reinforce and make more effective access to justice for victims of HR violations and abuses in the UN HR system. Note that this is particularly the case given that SPs are useful insofar as they have no direct equivalent with a universal mandate in the UN human rights system.
Firstly, this will reinforce the mission of SP mandate holders to prevent the commission of systematic HR violations.30 The preventative function of UN SP mandate holders was envisioned from their inception, as one of their core contributions relating to the role of the UN Special Rapporteurs within the UN overall institutional landscape, according to what the Chair of the Coordination Committee of Special Procedures has communicated in its June 2020 letter to the President of the UNSC:
“Their contribution occurs throughout the conflict/crisis continuum, before, during and after conflict, inter alia by identifying early signs of crisis, addressing human rights violations as conflicts unfold or fostering the integration of human rights in post-conflict situations, as well as supporting inclusive development.”31
Secondly, making more effective existing possibilities to raise collective actions will improve the functioning of the various UN special procedures mandate holders, by supporting ongoing trends towards pooling resources among them.
Thirdly, such a possibility does not mean that individual complaints ought to be relatively disregarded or put aside. On the contrary, the logic of collective action could ensure victims of human rights to raise their claims without having to suffer unnecessary complications.
In any case, the possibility to enable groups of persons suffering from harm and gross HR violations is directly falling under one of the most important functions assumed by HRC Special Procedures.
C. Further challenges ahead on the way to an effective collective complaint mechanism before Special Procedures mandate holders
Even if an effective reinforcement of possibilities to raise collective complaints in the collective system of the SP mandate holders will be a fruitful project for significantly improving the access to justice in face of international violations, such a development will not be without further challenges.
One clear challenge has to do with the very limited resources available to SP mandate holders, who mainly act voluntarily. In that regard, we suggest that there are several ways to avoid overwhelming them, mainly by filtering collective claims in a creative and efficient manner.
Given existing possibilities to raise complaints about the situations of multiple individuals or on the behalf of groups or communities, one of the fundamental questions that must be dealt with in the current context is how to better operationalise differentiation for some forms of collective harms suffered in violation of IHRL.
Other challenges relating to collective action for HR victims can be exemplified with some of the difficulties and flaws identified with the functioning of the ICC Trust Fund for Victims. Indeed, this Trust Fund for Victims is oftentimes criticised for causing the ICC to divert its resources and energy in a way detrimental to its main function, without even properly answering to the needs and concerns of victims,32 which is to render justice in complex international cases (and contributing to fight against immunity).33 By contrast, UN SPs are not a judicial or quasi-judicial body, and their work does not depend upon the main mission of any other institution, as is the case for the ICC Trust Fund for Victims with the ICC, from which it is institutionally separated.34 Thus, the situation of SP mandate holders is radically distinct because, in spite of the variety of the existing mandates, they are never operating on the basis of binding decisions and have generally no prerogatives or competencies to compel a State to cooperate with them if it does not consent to so doing.
Another fundamental challenge is how to ensure protection of data privacy & security for larger groups, since victims are directly exposed to real life or death dangers. The possibilities available to persons and peoples who suffer from HR violations absolutely must ensure their security. This translates into obligations to effectively organise legal and institutional frameworks, but also practical steps to protect their privacy and anonymity. This constitutes for SP mandate holders an utmost duty towards victims of HR violations, and in turn requires specific design and functionality features of the online platform launched by the UN to receive submissions to SP mandate holders. This is clearly spelled out in the 2008 Manual of the Operations of Special Procedures of the Human Rights Council: “Any person or group who cooperates with a Special Procedure is entitled to protection by the State from harassment, threats or any other form of intimidation or retaliation.”35; “Mandate-holders shall invite individuals and groups which have provided information and have suffered any form of reprisals or retaliation as a result to report all such incidents to the mandate-holder so that appropriate follow-up action can be taken.”36
Indeed, in the case of Myanmar, and other situations where serious human rights and international law violations are systematically committed against individuals and peoples, exposing the identity of complainants will put their life and security directly at risk, as well as their relatives’. This is a clear manifestation of the civil and political dimension of the internationally protected private sphere,37 which receives in international law reinforced protection in the case of human rights defenders and other persons aiming at the respect of core international obligations.38 The military junta in Myanmar is reported to use foreign surveillance technologies to monitor peoples’ online communications,39 thus confirming the utmost importance of ensuring privacy design in the context of online submissions to SP mandate holders.
In light of our observations, Just Access proposes the following near-term, mid-term and long-term recommendations for contributing to more effective submission mechanism before SP mandate-holders. Just Access recommends urgently ensuring a more privacy- and user-friendly design for the application form available for UN SP submissions. This in turn requires a better allocation of resources among SPs and a system for improved grouping and scaling of the requests.
On the mid- and long-term, Just Access recommends the adoption of a more effective system to allow groups of individuals to submit collective allegations in order to both secure further the right to access to justice at the international level and to streamline the scarce resource of the various SP mandate holders, especially in our current times of multiple global crises. Indeed, UN Special Procedures mandate holders do not only indirectly contribute to raising the alarm over human rights violations committed all over the world, but they more directly contribute to directing public attention to important issues, which can lead to a change of attitude among a State or a group of States whose reputation can suffer from reported international law violations and crimes by the UN.