The following is part four of series of articles by D.W. Duke, attorney member of SCE Campaign studying the possibilities of taking action against Islamic Republic of Iran’s practice of child executions which is in direct violation of their obligations under the UN conventions and treaties that they have signed.
By: D.W. DukePart I Part II Part III
Part IV: Procedures for addressing individual complaints to United Nations
“This extremely broad scope may prove to be one of the most effective tools for human rights proponents given that it addresses violations in any part of the world “
The United Nations has three mechanisms for processing complaints concerning human rights violations under the treaty system. Those three processes are individual complaints, state to state complaints and inquiries. In this article we will focus primarily upon the individual complaint process since this would be the most relevant to our readers. In addition to complaint processes under the treaties, there are complaint processes under the special procedures, the Human Rights Counsel Complaint Procedure and the Commission on the Status of Women.
Individual Communications under the applicable treaty
Individuals who claim that their rights have been violated pursuant to one of the following covenants or conventions may bring a communication before the appropriate committee where the State in question has recognized the competency of the Committee to hear the complaint. Complaints may also be brought by third parties on behalf of individuals provided the one whose rights have been violated has given his written consent or where it can be shown that he is incapable of giving his written consent.
Four of the United Nations treaty bodies may consider complaints as follows:
The Committee on Civil and Political Rights may consider individual communications brought under the First Optional Protocol to the International Covenant on Civil and Political Rights. www.ohchr.org/english/law/ccpr-one.htm
The Committee on the Elimination of Discrimination Against Women may consider individual communications brought pursuant to the Optional Protocol to the Convention on the Elimination of Discrimination Against Women. www.ohchr.org/english/law/cedaw-one.htm
Individual communications may be brought where State Parties have filed the appropriate declaration under Article 22 of the Convention Against Torture and other Cruel and Inhuman or Degrading Punishment. www.ohchr.org/english/law/cat.htm
Individual communications my be brought where State Parties have filed the appropriate declaration under Article 14 of the International Convention on the Elimination of all Forms of Racial Discrimination. www.ohchr.org/english/law/cerd.htm
A complaint process will also be available under the Convention on Migrant Workers once ten State Parties have made the necessary declarations under Article 77. www.ohchr.org/english/law/cmw.htm
The following link provides an overview for bringing complaints by individual communications under the treaty system. www.ohchr.org/english/bod…vidual.htm
Individual Communications under Special Procedures
On March 15, 2006 the UN General Assembly adopted Resolution A/RES/60/251 which established the Human Rights Council (HRC). In June 18, 2007 the Human Rights Council adopted a text entitled “UN Human Rights Council: Institution Building” (Resolution 5/1) by which a new complaint procedure was established to address “consistent patterns of consistent patterns of gross and reliably attested violations of all human rights and fundamental freedoms occurring in any part of the world under any circumstances.” This extremely broad scope may prove to be one of the most effective tools for human rights proponents given that it addresses violations in any part of the world (not just in member States) and in any circumstances (not just in war.)
Under this procedure two working groups, the Working Group on Communications and the Working Group on Situations were established to review communications and to bring to the attention of the Council consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms. The Council then makes a determination of whether the alleged violation is sufficient to warrant action.
Communications under Resolution 5/1 are to be submitted to:
Treaties and Human Rights Council Branch
1211 Geneva 10, Switzerland
Fax (41 22) 917 90 11
The following link provides more detailed information concerning the complaint procedure under the HRC. www.ohchr.org/english/bod…laints.htm
From UN website:
How does the complaint procedure work?
Pursuant to Council resolution 5/1, the Complaint Procedure is being established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances.
It retains its confidential nature, with a view to enhancing cooperation with the State concerned. The procedure, inter alia, is to be victims-oriented and conducted in a timely manner.
Two distinct working groups – the Working Group on Communications and the Working Group on Situations – are established with the mandate to examine the communications and to bring to the attention of the Council consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms.
Manifestly ill-founded and anonymous communications are screened out by the Chairperson of the Working Group on Communications, together with the Secretariat, based on the admissibility criteria. Communications not rejected in the initial screening are transmitted to the State concerned to obtain its views on the allegations of violations.
The Working Group on Communications (WGC) is designated by the Human Rights Council Advisory Committee from among its members for a period of three years (mandate renewable once). It consists of five independent and highly qualified experts and is geographically representative of the five regional groups. The Working Group meets twice a year for a period of five working days to assess the admissibility and the merits of a communication, including whether the communication alone or in combination with other communications, appears to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. All admissible communications and recommendations thereon are transmitted to the Working Group on Situations.
The Working Group on Situations (WGS) comprises five members appointed by the regional groups from among the States member of the Council for the period of one year (mandate renewable once). It meets twice a year for a period of five working days in order to examine the communications transferred to it by the Working Group on Communications, including the replies of States thereon, as well as the situations which the Council is already seized of under the complaint procedure. The Working Group on Situations, on the basis of the information and recommendations provided by the Working Group on Communications, presents the Council with a report on consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms and makes recommendations to the Council on the course of action to take.
Subsequently, it is the turn of the Council to take a decision concerning each situation thus brought to its attention.
What are the criteria for a communication to be accepted for examination?
A communication related to a violation of human rights and fundamental freedoms is admissible, unless:
• It has manifestly political motivations and its object is not consistent with the UN Charter, the Universal Declaration of Human Rights and other applicable instruments in the field of human rights law; or
• It does not contain a factual description of the alleged violations, including the rights which are alleged to be violated; or
• Its language is abusive. However, such communication may be considered if it meets the other criteria for admissibility after deletion of the abusive language; or
• It is not submitted by a person or a group of persons claiming to be the victim of violations of human rights and fundamental freedoms or by any person or group of persons, including NGOs acting in good faith in accordance with the principles of human rights, not resorting to politically motivated stands contrary to the provisions of the UN Charter and claiming to have direct and reliable knowledge of those violations. Nonetheless, reliably attested communications shall not be inadmissible solely because the knowledge of the individual author is second hand, provided they are accompanied by clear evidence; or
• It is exclusively based on reports disseminated by mass media; or
• It refers to a case that appears to reveal a consistent pattern of gross and reliably attested violations of human rights already being dealt with by a special procedure, a treaty body or other United Nations or similar regional complaints procedure in the field of human rights; or
• The domestic remedies have not been exhausted, unless it appears that such remedies would be ineffective or unreasonably prolonged.
The National Human Rights Institutions (NHRIs), when they are established and work under the guidelines of the Principles Relating to Status of National Institutions (the Paris Principles) including in regard to quasi-judicial competence, can serve as effective means in addressing individual human rights violations.
Partial List of References:
1. United Nations Charter
2. United Nations Universal Declaration of Human Rights
3. United Nations Covenant on Economic, Social and Cultural Rights
4. United Nations Covenant on Civil and Political Rights (ICCPR)
5. The First Optional Protocol on the Covenant on Civil and Political Rights
6. The Second Optional Protocol on the Covenant on Civil and Political Rights
7. The United Nations International Covention on the Rights of the Child
8. J. Robinson, Human Rights and Fundamental Freedoms in the Charter of the United Nations: A Commentary (1946)
9. L. Sohn & T. Buergenthal, International Protection of Human Rights 556 (1973) and L. Henkin The Age of Rights 51 (1990)
10. D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights 300 (1994)
11. International Human Rights, 3d edition, Buergenthal,Shelton and Stewart, (2002) West Publishing Company
12. International Human Rights in Context, 2d edition, Steiner and Alston, (2000) Oxford University Press
13. United Nations Human Rights Council Complaint Procedure
to be continued