Role Of The OHCHR In The Protection Of Human Rights

By Lalit Bdr. Basnet

The ongoing violent conflict unleashed by the Maoists in the name of Peoples' War has not only cost the country precious human lives and properties but has also tarnished the image of Nepalese as a peace loving community. The deteriorating law and order situation within Nepal has brought the country to the center-stage of global attention for human rights abuses. The frequent human rights violations including extra judicial killings, disappearances, torture, rape and abduction by the Maoists and the security forces have sharply drawn the interest of the world and those working for the protection and promotion of human rights. The seriousness of the human rights situation in Nepal may be assessed by the establishment of the Office of the High Commissioner for Human Rights (OHCHR) in the country to monitor the human rights situation, its abuses and prevent further violations. The Nepalese government signed the memorandum of understanding (MOU) under Item 19 with the OHCHR allowing the UN monitoring operation in Nepal . Prior to signing the agreement, Switzerland , with the support of the European Union, had proposed to pass a resolution under Item 9 against Nepal that would have paved the way for appointing the UN Special Rapporteur to Nepal to investigate human rights violations and suggest appropriate measures to be taken by the international community to bring greater accountability. This process, which enforces intrusive international monitoring, is generally known as “Naming and Shaming of the country". The adoption of Item 9 resolution would have - apart from strongly condemning Nepal - called the world community not to provide any kind of support and isolate her from the world community. This Item regarded as a harsh agenda has already been imposed against Burma , Cambodia , Eritrea , Ethiopia , and Darfur of Sudan. The establishment of the OHCHR in Nepal under Item 19 is considered to be much liberal than Item 9. The establishment of the OHCHR shall promote monitoring of human rights situation and observance of international humanitarian law including investigation and verification by international human rights officers throughout the country as required. It then submits its report to the government on human rights situation and calls for appropriate reforms. Following the response received from the government, the OHCHR submits a detailed and analytical public report to the Commission on Human Rights of the United Nations as well as to the Secretary General and the General Assembly on the observance of human rights and international humanitarian law of the concerned country. This Item is liberal also in the sense that it provides the concerned country with an opportunity for internal reforms and falls short of condemning and internationalizing the abuse of human rights as is done under Item 9.

Main functions : The OHCHR shall also advise the government on matters related to the promotion and protection of human rights in Nepal and shall also provide advisory services and support to the representatives of civil society, voluntary groups and individuals. It works "Impartially and independently" in collaboration with human rights activists and the press. It also facilitates the implementation of human rights commitments undertaken by Nepalese government including those contained in the international human rights treaties signed and ratified by Nepal . It also advises the authorities on formulation and implementation of policies, programs and measures for promotion and protection of human rights in Nepal . The Office acts with discretion and in line with the principles of the United Nations, including impartiality, independence, objectivity and transparency. To attain its goals, the OHCHR has been empowered with;

1. The right to monitor the situation of human rights and observance of international humanitarian law including investigation and verification by international human rights officers throughout the country as required;

2. It can inform the competent authorities of human rights violations and other abuses, in cases where it believes that the domestic legal procedures are inconsistent with those set forth in international instruments and in cases where no action or sufficient action have been taken and formulate recommendations, with a view to possible preventive or remedial action by national authorities where the office deems that the circumstances so require. To this end, the office shall receive information from any source and the identity of the authors of the information may be kept confidential and may promote measures to protect the authors of the information it receives.

3. All competent governance agencies both Civil and Military entities should co-operate on the design and implementation of permanent mechanisms for communication, consultation and dialogue for promotion and defense of human rights.

4. Apart from the government, it has the authority to advise the legislative and judicial branches with a view to ensuring that all human rights legislation and judicial decisions are consistent with the relevant international instruments and commitments.

5. Based on the information collected by the UN office, the High Commissioner submits detailed and analytical public reports to the Commission on Human Rights of the United Nations as well as to the Secretary General and the General Assembly on the observance of human rights and international humanitarian law. It also makes comments and recommendations as it deems appropriate. His Majesty's Government is required to fully co-operate for effective implementation of the mandate acquired by the Office and should also respond to inquiries made by the Office and take prompt remedial action to ensure compliance with Nepal 's International human rights and humanitarian law obligations. Article XIV of the MOU has authorized the staff of the Office access to all prison, detention center and places of interrogation without prior notice. Officials have the option of meeting in private with any detained person or anyone held in those offices. The Office has the right to access to government’s office including security forces and every documents and materials as may be needed for the proper discharge of the activities of the Office except the ones restricted by the Constitution. The settlement of any disputes between the Office and government relating to the provisions of MOU can be settled through negotiations by appointing arbitrator(s). The parties to the dispute can request the president of the international court of justice to appoint a third arbitrator.

Responsibility of State to protection of human right

The most encouraging recent developments in international law have been reorganization of the responsibility of the state for its inaction which results in Violation of human rights. The principle of state accountability was laid down by the inter American Court established under the American convention of Human Rights in its Judgment of 21 July 1989 in "Velsaquez Rodriguez" case. The issue was about the state liability for the compensation for breach of its human rights obligation under the American convention. In that case the issue that arose was whether the state of Honduras was liable to pay damages or compensation for the involuntary disappearance of Man Fredo Velasquez. The court ruled as follows: “The state is obliged to investigate every situation involving a violation of the rights protected by the convention. If the state apparatus acts in such away that the violation goes unpunished and the victim’s full enjoyment of such right is not restored as soon as possible, the state has failed to comply with its duty to ensure the free and full exercise of those rights of the person within its jurisdiction". The court declared that “it is a principle of international law that every violation of an international obligation which results in harm creates a duty to make adequate reparation and compensation is the usual way of doing so’’.

The inter American court extended those principle of state responsibility to a case where the state allows private persons or groups to act freely and with impunity to the detriment of rights recognized by the convention . The emerging principle is that the state is responsible for human rights violation committed even by non state actors residing within its jurisdiction. The European Court of Human Rights at Strasbourg recently held that authorities in the U.K. had violated the right of four children not to be ill treated when it failed to take reasonable steps to prevent them from being horrifically abused over a four years period by their parents.

In another case, the European court recognized that right to life may also imply in certain well defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The principle that human rights can also be violated by the inaction of the state has greatly contributed to the protection of human rights. Decisions of inter- American and European courts have to followed by other countries. These decisions have contributed towards the protection of human rights very wisely and the State should be active to protect human rights.

This kind of international trend shows that the state should be serious in protection of human rights and take responsibility for its inaction. The willingness of Nepal to sign this human rights agreement may be taken as an indication on the part of Nepalese government it's seriousness towards the protection of human rights in the country. Yet, it is a bit early to make any judgment on this issue. But to be pragmatic, arbitrary arrests, extra judicial killings, disappearances, torture, rape and abductions by the warring parties have not stopped. Democracy is still far off the track with the political parties and the Civic Society taking to the streets for restoration of their civil liberties and political rights. If this situation is to persist, His Majesty's Government of Nepal shall have a tough time ahead explaining to the international community its inherent intentions.

Peoples' Expectations:- The reports and fact finding missions of different human rights organizations have reported on barbaric crimes committed by both the warring parties. The Maoists have in the name of peoples' war committed crimes that are hard to explain in simple words. The indiscriminate killings of civilians and destruction of public properties cannot be excused. Perpetrators of such crimes against humanity have to be punished in accordance to their deeds but that's not the case at present. The establishment of the OHCHR has kindled a hope that it would transform the situation for better. Though the OHCHR has wide ranging authority to study human rights situation and make appropriate recommendations to the government and UNHCHR, it does not have the authority to directly punish the human rights abusers nor can the Office bring the perpetrators to justice. In such a scenario, there is an immediate need of a court to punish offenders identified by the UN human right officer(s) investigating such atrocities. The MOU does not mention anything about the punishments. Nepal has ratified all kinds of treaties related to Human Rights and is committed to the protection of the international humanitarian laws hence she should not hesitate to sign and ratify the Rome treaty of International Criminal Court. Becoming a party to the Rome treaty shall give room to punish the guilty without impunity. The objectives of establishment of the OHCHR shall be accomplished once Nepal becomes a party to ICC.

The establishment of the OHCHR and it's idea of setting up regional offices in the different parts of Nepal has been welcomed by all human rights activists, the civil society and the peace loving people of Nepal . People are confident that the OHCHR shall, with all fairness, protect and promote human rights, establish accountability for human rights abuses and help prevent further violations. This Office has been established at the right time to take actions against human rights violations in Nepal by passing a robust resolution that condemns the abusers and provides effective international monitoring. Let’s hope that OHCHR shall stand the test of time and stand up to the expectations of the people of Nepal in the protection and promotion of their human rights. Every segment and sector of the Nepali populace is eager to extend their full support and cooperation to the good work for which the OHCHR has been established.

(Basnet is a lawyer)