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The United Nations Creates a Working Group on Arbitrary Detention

Published online by Cambridge University Press:  27 February 2017

Reed Brody
Reed Brody*
Affiliation:
International Commission of Jurists
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Extract

The United Nations Commission on Human Rights, which met from January 28 to March 8, 1991, in the shadow of the gulf war, nevertheless completed what many observers considered its most productive session in recent history. The Commission took action on a record of nineteen country situations—creating new rapporteurs on Iraq and Iraqi-occupied Kuwait—began plans for a 1993 World Conference on Human Rights, and set up an intersessional working group to complete a draft declaration on disappearances. The most important long-term accomplishment of the Commission, however, was the creation of a five-member working group to investigate cases of arbitrary detention throughout the world.

Type
Current Developments
Information
American Journal of International Law , Volume 85 , Issue 4 , October 1991 , pp. 709 - 715
Copyright
Copyright © American Society of International Law 1991

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References

1 See, e.g., Lewis, U.N. Begins Inquiry Into Rights Abuses in Iraq and Occupied Kuwait, N.Y. Times, Mar. 11, 1991, at A9, col. 1; Brody, Suppose the Nations Had Spoken Out Against Baghdad Earlier, Int’l Herald Trib., Mar. 21, 1991, at 4, col. 3.

2 See, e.g., Kamminga, The Thematic Procedures of the UN Commission on Human Rights, 34 Neth. Int’l L. Rev. 299 (1987); Weissbrodt, The Three “Theme” Special Rapporteurs of the UN Commission on Human Rights, 80 AJIL 685 (1986); Rodley, UN Action Against “Disappearances,” Summary or Arbitrary Executions, and Torture, 8 Hum. Rts. Q. 700 (1986).

3 Sub-Commission on Prevention of Discrimination and Protection of Minorities Res. 1990/22, UN Doc. E/CN.4/Sub.2/1.991/2, at 47–48. Joinet proposed four different options: (1) appointment of a special rapporteur with a mandate covering administrative detention alone; (2) appointment of a special rapporteur with a mandate covering detention both by an administrative authority and by a judicial authority; (3) appointment of a special rapporteur with a specific mandate for situations of arbitrary or unauthorized detention of any kind; or (4) a five-member working group with the same mandate as option 3, and with the possibility that each member would specialize in one aspect of detention (judicial, administrative, juveniles, asylum seekers, other categories). UN Doc. E/CN.4/Sub.2/1990/29/Add.1, paras. 89–90.

4 See Kramer & Weissbrodt, The 1980 U.N. Commission on Human Rights and the Disappeared, 3 Hum. Rts. Q. 18(1981).

5 In 1988, on the initiative of the United Kingdom, the Commission for the first time adopted a resolution calling for the release of “political prisoners.” Commission on Human Rights [hereinafter CHR] Res. 1988/39, UN Doc. E/CN.4/1988/88, at 98–99. In 1989 the United Kingdom went further and proposed the appointment of a special rapporteur to examine the question. China, India, Rwanda and the Ukrainian Soviet Socialist Republic proposed amendments to the draft, deferring consideration of appointing a rapporteur and introducing restrictive language. The United Kingdom thereupon withdrew its resolution and submitted one virtually identical to the previous year’s. CHR Res. 1989/56, UN Doc. E/CN.4/1989/86, at 136 and 220–21.

6 See text at note 24 infra.

7 The five regional groups at the United Nations are the Western European and Others, the Eastern European, the Latin American and Caribbean, and the African and Asian.

8 The work of Gompertz in guiding the draft through would contribute to his receiving the NGO Ruth Pearce Award as the diplomat who had done the most to advance the cause of human rights at the session. Named after an Australian diplomat, the award previously went to Ana Martins Gomes (Portugal) in 1989, and to Mikael Dahl (Sweden) in 1990.

9 Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810, at 71 (1948), Article 9, states, “No one shall be subjected to arbitrary arrest, detention or exile.” International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171, Article 9(1), provides: “Every one has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.”

10 The original French text read, “detentions arbitraires ou abusives.”

11 CHR Res. 1991/42, UN Doc. E/CN.4/1991/22, at 105. The word “imposed” was included to make clear that the mandate concerned the fact of detention, not its conditions, the latter falling within the province of the Special Rapporteur on Torture.

12 Only the Working Group on Disappearances is authorized to receive information from “other reliable sources.” CHR Res. 20 (XXXVI), UN Doc. E/CN.4/1408, at 180 (1980). The sources of the other mechanisms are limited to governments, specialized agencies, intergovernmental organizations and NGOs.

13 CHR Res. 1991/42, supra note 11.

14 In the 1990 debate over “enhancement” of the Commission’s procedures, the Group of Non-Aligned States suggested:

The practice in respect of the appointment of Special Rapporteurs on thematic issues should be re-examined. On thematic issues of global interest, Working Groups of five persons from different regions should be formed. These Working Groups could also include members from various Permanent Missions in Geneva, which would result in reduction of expenditure. Such Working Groups would provide additional advantages of transparency, credibility and democracy.

UN Doc. E/CN.4/1990/WG.3/WP.6, at 3, para. 3.

15 The UN Secretariat has estimated the cost of the group’s functioning at approximately $500,000 per year over three years.

16 CHR Res. 1991/42, supra note 11.

17 Study of the right of everyone to be free from arbitrary arrest, detention and exile, UN Doc. E/CN.4/826/Rev.1, at 7, para. 27 (1964).

18 Conteris v. Uruguay, Communication 139/1983, 2 Selected Decisions of the Human Rights Committee under the Optional Protocol at 68, UN Doc. CCPR/C/OP/2, UN Sales No. E.89.XIV.1 (1990) [hereinafter 2 Selected Decisions].

19 Celiberti v. Uruguay, Communication 56/1979, 1 Selected Decisions of the Human Rights Committee under the Optional Protocol at 92, UN Doc. CCPR/C/OP/1, UN Sales No. E.84.XIV.2 (1985) [hereinafter 1 Selected Decisions]; López v. Uruguay, Communication 52/1979, 1 Selected Decisions at 88.

20 Monguya Mbenge v. Zaire, Communication 16/1977, 2 Selected Decisions, supra note 18, at 76.

21 Lanza v. Uruguay, Communication 8/1977, 1 Selected Decisions, supra note 19, at 45; Améndola v. Uruguay, Communication 25/1978, 1 Selected Decisions at 136.

22 Torres Ramírez v. Uruguay, Communication 4/1977, 1 Selected Decisions, supra note 19, at 49; Améndola v. Uruguay, Communication 25/1978, 1 Selected Decisions at 136; Buffo Carballal v. Uruguay, Communication 33/1978, 1 Selected Decisions at 63; Soriano de Bouton v. Uruguay, Communication 37/1978, 1 Selected Decisions at 72.

23 Nagalula Mpandanjila v. Zaire, Communication 138/1983, 2 Selected Decisions, supra note 18, at 164.

24 See, e.g., Jaona v. Madagascar, Communication 132/1982, 2 Selected Decisions, supra note 18, at 161 (Committee finds violation of Covenant Art. 9(1) “because Monja Jaona was arrested … and detained … on account of his political opinions”); Martinez Portorreal v. Dominican Republic, Communication 188/1984, 2 Selected Decisions at 214 (Committee finds violation of Art. 9(1) where victim was allegedly arrested “because of his activities as a leader of a human rights association”).

25 Van Alpen v. Netherlands, Communication 305/1988, UN Doc. CCPR/C/39/D/305/1988.

26 In 1989 Amnesty International took up 3,376 cases of possible “prisoners of conscience”—persons detained for their beliefs, race or religion who have not used or advocated violence. 1990 Amnesty International, The Amnesty International Report 298.

27 CHR Res. 20 (XXXVI), UN Doc. E/CN.4/1408, at 180 (1980) (disappearances); CHR Res. 1982/29, UN Doc. E/CN.4/1982/30, at 147 (summary or arbitrary executions); CHR Res. 1985/33, UN Doc. E/CN.4/1985/66, at 71 (torture). Only the rapporteur on summary or arbitrary executions was not initially mandated to “respond effectively” to information received. This omission was rectified in CHR Res. 1984/50, UN Doc. E/CN.4/1984/77, at 86. See Weissbrodt, supra note 2, at 688–89. In the case of the new group, it was assumed that the mandate to “investigate” subsumed the mandate to “respond effectively,” obviating the need to specify the latter.

28 Under the so-called urgent action procedure, the special rapporteurs and the working group send telegrams (or telexes or telefaxes) to the authorities of a country where arbitrary execution is imminent, torture is feared, or an alleged disappearance has recently occurred, urging immediate governmental action (or forbearance) to prevent or end the abuse.

29 See, e.g., Kamminga, supra note 2, at 319. The author suggests that “feedback to the sources of information (in order to obtain further information and to ensure their future cooperation)” would make a thematic procedure more effective. Even the working group on disappearances, however, “does not concern itself with the question of determining responsibility” for disappearances. Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. E/CN.4/1988/19, at 5, para. 16.

30 For the first Optional Protocol to the Covenant, Dec. 16, 1966, see 999 UNTS 302. The Human Rights Committee has not developed any independent fact-finding procedures. Under Article 5(1) of the first Optional Protocol, it considers “all written information made available to it” by the parties. For a discussion of how such cases are treated, and speculation on the possibilities for fact finding, see Mose & Opsahl, The Optional Protocol to the International Covenant on Civil and Political Rights, 21 Santa Claral. Rev. 271 (1981).

51 The Human Rights Committee has expressly rejected the authority to “review in the abstract whether national legislation contravenes the Covenant.” Report of the Human Rights Committee, 39 UN GAOR Supp. (No. 40) at 114, para. 573, UN Doc. A/39/40 (1984).

32 Report of the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc. A/CONF. 144/28, ch. I, sec. C, Res. 17, at 164 (1990). Following past practice, the Committee will probably prepare a set of principles governing pretrial detention for consideration by the ninth UN congress in 1995.

33 See Turk & Joinet, The right to freedom of opinion and expression, UN Doc. E/CN.4/Sub.2/1990/11. This report continues the inquiry begun in the working paper concerning the detention of persons who exercise the right to freedom of opinion and expression, which was prepared by Mr. Joinet, UN Doc. E/CN.4/Sub.2/1987/15, Ann. I, at 11–13.