It is now high time that the human rights treaty bodies develop a co-ordinated and coherent system-wide approach to the vital issue of intimidation and reprisals, says Professor Malcolm Evans, Chair of the Meeting of Chairpersons of the Human Rights Treaty Bodies.

By Professor Malcolm Evans, Chair of the Meeting of Chairpersons of the Human Rights Treaty Bodies and Chair of the UN Sub-Committee on the Prevention of Torture

During their meeting in June this year, the Chairs of human rights treaty bodies shared their concern at instances of reprisals taken against those whose assist the treaty bodies in their work. This concern is not new but it has certainly been heightened by the failure of the General Assembly last year to endorse the approach set out by the Human Rights Council in Resolution 24/24. The Special Procedures have developed a Protocol for handling individual cases of reprisals, with the Special Rapporteur on Human Rights Defenders acting as a focal point for cases of reprisals, and there is training for new mandate-holders on how to prevent reprisals when handling communications and conducting country visits.

It is now high time that the human rights treaty bodies likewise develop a co-ordinated and coherent system-wide approach to the vital issue of intimidation and reprisals.

At the moment, the various committees have responded in different ways, reflecting their particular mandates and their experience of the problem. It is right that they should reflect on their mutual experiences and continue to respond in a way which best suits their work and offers the greatest possible protection to those who are at risk as a result of engaging or of seeking to engage with the treaty bodies. But, in common with the trend towards aligning their working practices, the Chairs have gone further and expressed their interest in developing a common treaty body policy against reprisals.

As a first and immediate step, they are encouraging all treaty bodies that have not yet done so to establish a focal point on reprisals. This should make it easier to know who to channel concerns towards and, by making a report from the focal point a standing item for each treaty body at every session, ensure there is continuous monitoring of the problem and a proper space for the generation of practical responses. Similarly, the Chairs themselves will make the topic a standing agenda item of the annual meeting of the Chairpersons and they have committed themselves to consider and adopt a joint policy on reprisals at their next full meeting in 2015. So far, so good.

One of the issues that needs to be faced is that there is remarkably little said about reprisals in the treaties themselves. Perhaps when the earlier treaties were drafted, a process largely based on the consideration of reports generated by States was not thought likely to raise such questions, whilst the communications procedures would be conducted under the eye of the treaty bodies in any case. But perhaps it was just not thought of at all.

Whatever the case, this has to an extent now been addressed by the text of the Optional Protocol to the Convention against Torture. It sets out what is possibly the most robust legally-binding provision to be found, providing in Article 15 that ‘No authority or official shall order, apply, permit or tolerate any sanction against any person or organisation for having communicated to the Subcommittee on Prevention or to its delegates any information, whether true or false, and no such person or organisation shall be otherwise prejudiced in any way’. This ought, of course, to be understood as also embracing those who seek to communicate too, this being an element of the State’s duty to co-operate with the relevant international bodies.

From a more general legal perspective, it is difficult to see how a State which practices or condones reprisals can be said to be acting in good faith and in accordance with its general obligations under the law of treaties, to not undermine the object and purposes of a treaty to which it is a party. There is, then, a very solid legal basis on which the treaty bodies may build, based on their particular texts and general principles.

But what does a ‘practical response’ actually look like? This is not so easy. Whilst it is vital to ensure that appropriate remedies are available to those who have suffered reprisals, and that those responsible are held to account, this does not in itself address the problem. The ‘chilling’ effect of the threat of reprisals and sanctions, which inhibits the flow of information which is the lifeblood of the system, must also be remembered and addressed. Protection must be offered ‘in real time’ to those who find themselves at risk – and doing so effectively may take the system into new and uncharted territory. But it has to be done.

It is, perhaps, appropriate to finish by quoting the words of the new High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, who, in his first address to the Human Rights Council this week said that  ‘…the work done by OHCHR, by the Special Procedures, by Treaty Bodies, this Council itself, and indeed, by Member States, could never be achieved without the greater efforts of civil society actors. We need their continuing support and contributions to realise progress. I encourage the Council to strengthen its constructive engagement with civil society actors, and to ensure that their voices can be raised safely and without reprisals’ (emphasis added).

Now indeed is the time to respond to this challenge.