By Jacinta Mulders, Centre for International Governance and Justice, ANU
Some have lauded the Human Rights Council’s Universal Periodic Review (UPR) mechanism for its state-based model, ensuring equality of treatment between all 193 UN member states. Others have criticised the bureaucratic nature of the process and the superficiality of the documents produced.
In the course of a single review, states commonly receive upwards of 200 recommendations for human rights reform. Rather than reflecting a concerted effort towards developing a state’s human rights culture, these short, cursory comments often seem ill considered. As I discuss below, Sri Lanka’s experience at the UPR provides a good example — demonstrating how UPR recommendations often fail to consider the realities associated both with rights violations and with what is required to achieve rights implementation in a particular country.
Reports produced by the Office of the High Commissioner for Human Rights (OHCHR), on the other hand, can play a more useful role. Former High Commissioner Navi Pillay’s report on promoting post-war reconciliation and accountability in Sri Lanka, released in early 2014, is rigorous but concise, has a confined focus, uses concrete examples, and is the result of consultation with members of Sri Lankan government, civil society, and victims.[i] The report provides a more realistic account of rights violations as they were experienced, and therefore provides a more effective base for suggesting avenues of rights-focused reform.
Sri Lanka in the UPR
In the course of Sri Lanka’s second UPR, the country received 204 recommendations. One recommendation, from Austria, called on Sri Lanka to ‘adopt a National Policy on the protection of human rights defenders and journalists in order to prevent harassment and intimidation’.[ii]
To anyone who had been following press reports, NGO statements or human rights treaty body reports on the situation in Sri Lanka during the immediate post-war years, this recommendation seemed almost delusional. Firstly, because of the hostile attitude of the Sri Lankan government to UN accountability mechanisms and NGO probing.[iii] In 2013, during Navi Pillay’s visit to Sri Lanka for the purposes of drafting her report, she spoke at a press conference about
the harassment and intimidation of…human rights defenders…and many ordinary citizens who met with me, or planned to meet with me. I have received reports that people in villages and settlements in the Mullaitivu area were visited by police or military officers both before and after I arrived there in Trincomalee, several people I met were subsequently questioned about the content of our conversation.[iv]
Secondly, reports suggested that much of the persecution occurring against journalists and human rights defenders in Sri Lanka was state-sponsored. Human rights defenders had been subject to threats and derogatory remarks,[v] and police had blocked buses carrying people intending to demonstrate against the disappearance of their family members.[vi] Human Rights Watch Executive Director Kenneth Roth referred to the ‘reign of censorship’ and ‘threats and violence’ imposed by the Rajapaksa government.[vii] If the Sri Lankan government was involved in the suppression of dissent at the time of its UPR, it is most unlikely that it would act positively in response to a recommendation to adopt ‘a national policy on the protection of human rights defenders and journalists’.
In this context, the Austrian recommendation was particularly out of touch. It exemplified, however, a lot of the language used in UPR documentation, which is lofty, polite, aspirational, and expressed without any engaged sense of human rights violations as they occur ‘on the ground’.
Document Production in Modern Bureaucracies
Julie Billaud, who interned with the OHCHR as part of an ethnographic study of the UPR, has commented on the gap that exists between UPR documents — which purport to reflect a human rights situation as it ‘objectively’ exists — and ‘real human voices’. In the course of her internship, Billaud had the task of drafting one of the two background documents that the OHCHR produces for the UPR.[viii] To Billaud, the process of creating these documents is typical of work conducted in modern bureaucracies, where ‘content fades away behind the aesthetics of logic and language, producing acceptable modes of impartiality.’[ix]
Part of what makes Billaud’s account so enlightening is the insight it gives into the complicated processes that go on behind the production of documents that purport to communicate an objective reality. In a similar sense, the many imperatives operating behind UPR recommendations are hidden from public view. We cannot know the private conversations that go on between state representatives, or how much the language is controlled by the strictures of global diplomacy. In framing their recommendations, states may be driven by local concerns and preoccupied with the desire to ‘make a statement’, irrespective of the likelihood of eventual implementation. Acceptance of recommendations can be driven by states’ desire for aid, by domestic political imperatives, and by the desire to appear to the international community as a responsible rights citizen. Meanwhile, the entire process is constrained by the strict time limits imposed on the UPR, and the limited number of pages that can be produced. States are expected to suggest significant changes to other states’ laws and policies within very confined parameters — and not only this, they are expected to do it 193 times. It’s no wonder that many recommendations do not seem meaningful or engaged.
The Utility of OHCHR Reports
In this respect, the processes involved in the UPR can be contrasted with the processes involved in the production of reports by the OHCHR. Former High Commissioner Pillay’s visit to Sri Lanka in 2013 involved intensive consultation with all levels of government (including President Rajapaksa), as well as the families of victims, those living in internally displaced person camps, and other commentators.[x] The report itself summarised the existing situation before discussing discrete areas of human rights concern, and evaluating the accountability measures that had been pursued by the Sri Lankan government. The report provided detailed accounts of people whose lives had been adversely affected by government actions, or who were the victims of crimes for which they had received no redress.[xi] It provides a very real sense of the atrocities committed, as experienced by their victims. With its firm grounding in consultation, and clear, nuanced presentation of the facts, the recommendations contained in the report are based on a much firmer foothold than those produced by the UPR.
Reports of the OHCHR can be viewed as an important bridge: though they have a substantive grounding in a particular country context and situation, they still speak the language of the UN and are the subject of scrutiny by the Human Rights Council. In future reform to UN human rights mechanisms, including the UPR, working groups should look to OHCHR reports for guidance — to the merits of providing examples, to close scrutiny, and to trying to understand the political and cultural context of a particular country.
[i] 24 February 2014, ‘Promoting reconciliation and accountability in Sri Lanka’, A/HRC/25/23. This report, prepared pursuant to Human Rights Council Resolution 22/1 of 9 April 2013 (A/HRC/22/1), preceded the OHCHR Investigation on Sri Lanka.
[ii] Human Rights Council, Report of the Working Group on the Universal Periodic Review: Sri Lanka, 22nd sess, Agenda Item 6, UN Doc A/HRC/22/16 (18 December 2012) 26 (Recommendation 128.86).
[iii] See Sri Lanka: Rajapaksa Legacy of Abuse: Assaults on Activists, Resistance to International Investigation in 2014 (29 January 2015) Human Rights Watch <http://www.hrw.org/news/2015/01/29/sri-lanka-rajapaksa-legacy-abuse>.
[iv] Navi Pillay, ‘Opening Remarks by UN High Commissioner for Human Rights’ (Press Conference, Colombo, Sri Lanka, 31 August 2013).[No need for web address as I have inserted a link here]
[v] Human Rights Council, Promoting Reconciliation and Accountability in Sri Lanka: Report of the Office of the United Nations High Commissioner for Human Rights, 25th sess, Agenda Item 2, UN Doc A/HRC/25/23 (24 February 2014)  (‘Promoting Reconciliation and Accountability in Sri Lanka’).
[viii] Julie Billaud, ‘Keepers of the Truth: Producing “Transparent” Documents for the Universal Periodic Review’ in Hilary Charlesworth and Emma Larking (eds), Human Rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge University Press, 2014) 63, 66.
[ix] Ibid 82.
[x] Pillay, above note iv.
[xi] Promoting Reconciliation and Accountability in Sri Lanka, above, note i, –.