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‘Monitoring Missionaries’

Opinion:by Sanja de Silva Jayatilleka Courtesy The Island 13-10-2007

Why is the idea of a field presence of the Office of the High Commissioner for Human Rights and the much talked about 'monitoring mission' viewed with such suspicion today by so many , and why do others insist on its establishment in selective parts of the world?

What is its relationship to the UN Human Rights Council?

The Office of the High Commissioner
* The post of High Commissioner was established in December 1993 by a General Assembly resolution.
* Since then, it has established 7 regional missions and 13 country missions in various parts of the world.

Given below is an excerpt from the OHCHR website :
"The current seven regional offices-two in Africa (East and Southern Africa), two in Asia (Southeast Asia and the Pacific), one in the Arab Region (Middle East and the Gulf), one in Central Asia, and one in Latin America-will be adapted to conform to the vision described in the Plan of Action. Those in Central Asia, East Africa and Southeast Asia will be strengthened, and three new offices will be opened for Central America, North Africa and West Africa. In addition, the functions of the New York Office will be enlarged to ensure closer cooperation with the countries in North America and with the multilateral financial and development institutions located there.

In mid-2005, OHCHR reviewed its field activities through the prism of the Plan of Action. The review allowed OHCHR to identify the most obvious implementation gaps in each of the regions, to target countries for engagement during the 2006-2007 biennium, and to determine the most appropriate type of engagement, including whether field deployments should be in the form of regional offices, country offices, support for peace missions, or the assignment of human rights officers to United Nations Country Teams.

OHCHR has country offices in Angola, Bosnia and Herzegovina, Burundi, Cambodia, Colombia, Democratic Republic of the Congo, Guatemala, Mexico, Nepal, Palestine, the Russian Federation, Serbia and Montenegro (including Kosovo) and Uganda.

In 2006-2007, OHCHR plans to establish new offices in Bolivia and Togo. These two countries were selected according to criteria laid out in the Plan of Action, namely: the seriousness of the human rights situation, the potential for OHCHR to positively influence the situation, OHCHR's ability to operate under a broad mandate, and the openness of the government and civil society to work with OHCHR to close implementation gaps. "(My emphasis - S.deS.J) (http://www.ohchr.org/english/countries/field/field-information.htm#country)

* Madam Louise Arbour was appointed High Commissioner in July 2004.
* The relationship of the OHCHR to the Human Rights Council (HRC) and the UN General Assembly is in the process of being defined.

The Human Rights Council
* The Human Rights Council was created by the General Assembly in March 2006.
* It replaced the Human Rights Commission which addressed Human Rights issues for the last sixty years. The Commission suffered severe criticism by many states and the challenges to its credibility lead to its replacement by the new Human Rights Council (HRC).
* The HRC has 47 members of which Sri Lanka is one.
* The members are elected for the period of two to three years. Sri Lanka is an elected member and its membership comes up for renewal in 2008.
* The council has a President from one of the 5 regions (this year's Presidency falls by a system of rotation to the Western region) and 4 Vice Presidents from the 4 remaining regions, Latin and Caribbean, Asian, African and Middle Eastern. (Dr. Dayan Jayatilleka of Sri Lanka was unanimously voted by the Asian Group as its nominee for the Asian Region for the year to September 2008).
* The Human Rights Council holds sessions 3 times a year.
3 weeks in September
1 week in December
4 weeks in March which hosts what is called the 'High Level Segment' where it sees the participation of high level delegates such as Ministers.
* Special Sessions can be held with the agreement of at least 16 member states. The most recent special session was on Myanmar which was held immediately following the completion of the 6th session of the HRC in September this year.
* The Council sessions are accessible to all on a web-cast within several hours of the completion of a session. The web-cast can be accessed on http://www.un.org/webcast/unhrc/archive.asp

The Commissioner and the Council

The relationship in which it stands to the HRC is of relevance to the role of the OHCHR. It is critical that this relationship is clearly defined in all its aspects.
This week, a significant vote took place in the UN General Assembly in New York which shed light on one aspect of that relationship. A majority in the General Assembly including Sri Lanka voted that Madam Arbour should in the first instance present her country report to the Human Rights Council and not by pass it in favour of the General Assembly. As such, the country reports sought to be presented were struck off the agenda of the on-going 3rd Committee of the General Assembly.
During the recently concluded 6th session of the Human Rights Council in Geneva, several countries called for clarity in the role of the OHCHR with regard to the HRC. The Council has also called for more equitable regional representation in the staff recruited to the OHCHR. The OHCHR has stated that it has increased its budget with a view to achieving this in the future.

The Field Presence

When does the OHCHR presence become necessary for a country and who decides on its establishment?
The General Assembly created a new mechanism called the Universal Periodic Review (UPR) under which the Human Rights Council is required to carry out a review of the fulfilment of the human rights obligations and commitments of all its members. Sri Lanka is scheduled for UPR in May 2008.

During this year's September sessions of the HRC, the EU called for the government of Sri Lanka to agree with the request of the High Commissioner to establish a field presence in Sri Lanka. At this stage, the High Commissioner had not made a visit to the country. Several NGOs also called for the establishment of a field presence.

A presence of the OHCHR can only be established with the cooperation of the country in question. It can however come under pressure from other states to agree to one. The report of the High Commissioner is crucial in this regard and her recommendations would be taken very seriously by all states.

There are some concerns arising from statements made in the past by the OHCHR that need to be examined critically.

The High Commissioner emphasised in her conclusions at the first session of the new Human Rights Council that any government's commitment to human rights should include a willingness to allow an Office of the High Commissioner to operate in their country.

This view of the measure of a country's commitment to Human Rights would be unacceptable to many. It presumes the absolute moral authority of the High Commissioner's office and its field offices. As we have discovered to our dismay in Sri Lanka, the personnel recruited to the various human rights agencies have not proved themselves to be impartial or invulnerable to pressure from lobbyists.

At the Human Rights Council sessions, it was agreed by the majority of States that the High Commissioner should continue to present updates to the Council at each session. The High Commissioner's reports to the Council have not gone unchallenged. On many occasions the impartiality of the OHCHR has been called into question.

The OHCHR is also keen to establish regional offices in different parts of the world. At the last session of the HRC, it was suggested by China that regional offices should only be established with the concurrence of all the states in the region, and not only that of the country which hosts its office.

The NGO call for the Monitoring Mission

There has been an incessant call by various NGOs to set up a monitoring mission in Sri Lanka. One has gone as far as to say that the establishment of a mission is being impeded by "antediluvian notions of sovereignty". A monitoring mission does not affect a nation's sovereignty and notion of sovereignty is not yet considered antediluvian by the UN system, although the concept of Responsibility to Protect (R2P) has been stretched beyond the limits agreed at the World Leaders Summit of the UN, by some of its supporters.

Some of the NGOs call for the establishment of a monitoring mission based on falsehoods or exaggeration, cases in point being the recent Human Rights Watch report produced by Charu Lata Hogg and the statements made in the Human Rights Council by Karen Parker.

The government of Sri Lanka has called for assistance from the OHCHR for capacity building and training and strengthening of the existing human rights institutions. There is already a UN Senior Advisor on Human Rights working with national institutions.

Is there a case for establishing a monitoring mission in Sri Lanka? Should Sri Lanka be among the High Commissioner's priorities in establishing yet another monitoring mission? Is it not better to strengthen national institutions and increase awareness of human rights issues in the country, especially when that country has shown a willingness to engage with the human rights community in a spirit of co-operation, despite being in the middle of a conflict situation?

Why would the High Commissioner prefer the establishment of one of her offices to considering the path of strengthening national institutions? Does she subscribe to the view expressed at an earlier session to the effect that the Monitoring Mission is the new gold standard that measures a country's commitment to Human Rights? Is the proliferation of the High Commissioner's office an indication of her success?

These issues are still being debated in the Human Rights Council and Sri Lanka should contribute robustly to that debate.

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