A Conversation on the UN’s Special Procedures

Editor’s Note: The United Nations’ mechanism for investigating human rights violations, called the special procedures, face a number of challenges in completing their mandates. To hear about these challenges firsthand, Ted Piccone, author of the book Catalysts for Change: How the UN’s Independent Experts Promote Human Rights, spoke with international human rights expert and DePaul University School of Law Prof. Cherif Bassiouni, who has served as an independent expert in the former Yugoslavia, Afghanistan, Libya, and Bahrain. Piccone and Bassiouni discussed their experiences working with independent experts this July.

Ted Piccone: Cherif, you have so much experience, going back to your work when you served as an independent expert in Afghanistan. Can you give us your own personal reflections of this tool that governments have created to send independent experts to look into human rights matters on the ground?

Cherif Bassiouni: First Ted, congratulations on your new book. I think it is a very important book and I don’t say that gratuitously. But I think it is important for people to understand some of the problems with the [United Nations] as a system in respect to fact-finding and how in the final analysis it’s individuals who are appointed to these different fact-finding missions who save the day. Because the UN system is not only fraught with political considerations, but is self-fragmented bureaucratically, so it’s quite surprising that anything gets accomplished. And with limited resources available, the credit really in the final analysis goes to the individuals, whether they are appointed by the [UN] Human Rights Council as members of commissions of inquiry or as special procedures, as independent experts or in my first experience, the Security Council appointed me chairman of a commission to investigate what was happening in the former Yugoslavia.

Having investigated five conflict and justice situations, I can say that there isn’t a mandate that looks like the other, and not only in the five cases I was involved in, but in the many other cases. Each mandate is created for different political reasons, has its political limitations, personnel limitations, financial limitations. When the [UN] Security Council in ’92 appointed a commission of experts to investigate what was happening in the former Yugoslavia at the height of the war, to my utter surprise, the commission was not allocated a penny in resources. Not a penny. So here in ’92, you have the biggest mandate given by the Security Council since Nuremberg to do an investigative fact-finding mission and yet no resources allocated. And we finally had to go and find the resources through the private sector and voluntary contributions.

You mention Afghanistan. When I was assigned as independent expert to Afghanistan, it wasn’t a commission. It was just a single individual. And again, not a single penny for resources. And it was a good thing that I had the resources of the International Institute of Higher Studies in Criminal Sciences in Italy, which I direct, that had an office there funded by the Italian government, which I used as a base for the work. In Libya, we (for example) were given a fairly large mandate, good resources, but that lasted only until Gaddafi was alive and the moment Gaddafi died, all interest went out the window.

You see these different mandates with their political overtones, but you also see the political manipulation working through the resources, the personnel allocation, and the facilitation that the UN can provide. And that’s why in the end, the contributions of individuals and their organizations become critical.

Piccone: You really put a fine point on one of the basic themes of the book, Catalysts for Change: How the UN’s Independent Experts Promote Human Rights, which is to emphasize the importance of individual personalities and their own working styles, and their ability to get on the ground and connect the dots, to be able to talk to victims, to government officials at the highest level, because the governments are of course wary of any kind of bad reporting but they also feel sometimes the pressure, the political pressure, to talk to the independent expert to give their side of the story. Can you give us an anecdote or two on how you manage to play in that world and come up with such revealing stories?

Bassiouni: I remember one day in Afghanistan, I went to see President [Hamid] Karzai and I said, “You know, I just discovered something quite atrocious. First of all, I discovered that there was a prison in Kabul. It had 40 women in there, and when I went in there, I discovered there were 120 children.” He said, “Children in the prison?” and I said yes. Apparently when the husbands find that their wives are going to prison, they don’t want to keep the children. And so they send the children with their wives in prison. So suddenly, the women who are in prison are now sharing their resources, their food, their blankets, their beds with their children. If it weren’t for the women sharing it [resources], these kids would starve. I said, “How is that tolerable?” And he said, “Well, I can’t believe it.”

I said, “Let me add something else. Do you know, for example, that one of these women, a short woman of about [5’1”], she was found guilty of killing two men over six-foot tall by stabbing them to death. He said “well that’s impossible.” And I said, “I think that’s impossible too. You know what’s happening is that the women folks are taking the blame for the men folks in your country.” This is not the only problem that the women are facing here. All of the crimes that are being committed between men result in young girls getting bartered by tribes in marriage as a way of compensating the other tribes. So you’re not only putting young children in slavery or bondage as of the age of 12 or 13, but their children will suffer the same condition.

Well, he raised hell and yelled and screamed and whatnot, and pretended that he never heard of it and things like that. The point is: Nothing much was done, but a little bit was done and the only way it was done was because I was able to personally embarrass him in a very polite way. But there are many, many examples of that where some progress is made simply because an individual who is appointed in that type of mission carries out the work with some dedication, with additional resources from the outside, and is willing to push the outer envelope.

Piccone: Another factor in creating some kind of momentum for change is the role of non-governmental organizations, and of course the media shining a spotlight on the findings of the special rapporteurs. Did you have any particular experience with either the NGO community or with the media that you felt helped get your story out there whether in Afghanistan or perhaps more recently with the experience in Libya?

Bassiouni: Both the NGOs and the media can be a help and a hindrance and the reasons are different. In respect to the media, it really depends on the newspaper or the media outlet, how many persons they have available, what time and resources they have available. So if you have a situation where when I chaired the independent commission of inquiry in Bahrain, and I had a visit from somebody from The New York Times, the person will come and say, “Well, you know, I only have 24 hours for Bahrain because I’ve got to cover other countries in the Middle East. So what is it that I can discover in 24 hours or that you can tell me that I can verify so I can write my story?” That immediately limits the range and it becomes a question of opportunity when you were there at this time a journalist, this major news outlet was there, so that you can coincide with the person. That’s one problem.

The other problem is that because of the lack of time and resources, most journalists don’t have time to check their facts, verify what their sources are and so on. As a result of that, they frequently take things at face value, without verifying the facts, and they tend to follow the sensationalism. And sometimes it is not true or is misleading.

On the human rights organizations, it’s a problem because you have a few major organizations: Human Rights Watch, Amnesty International, Human Rights First. These are major organizations, these are big enterprises. They have hundreds of employees, millions of dollars in budgets. And they do a good job on the whole but they also become bureaucratized. They also become an enterprise. They also seek funding from foundations and other sources. They also seek recognition from governments – that helps with their standing and it also helps them with getting funding. There are times when you will find, for example, Human Rights Watch being particularly focused on Bahrain and disproportionately covering Bahrain and not covering Syria for example. And so you have the problem of balance that depends on a variety of internal factors with the organization.

In Geneva, where you have the Human Rights Council and you have the treaty bodies, the nine committees created by various human rights treaties, frankly all of the work in Geneva is very largely dependent on human rights organizations. And if it wasn’t for their contributions to facts and gathering of information, much of the work of the UN would go to a grinding halt.

Piccone: Do you have any thoughts on the U.S. political debate around the Human Rights Council - should the U.S. stay engaged, which the Obama administration has done, or should it just walk away?

Bassiouni: I think it should stay engaged, I think it should engage more. I don’t think it has been quite as effective as it should have been. I think Russia, for example, is very engaged, as is China. And both of these countries are working very hard and in effect controlling the functions of the human rights councils and of the commissions of inquiries that are established by playing with the mandate and then using their political leverage to pressure the Office of the High Commissioner. Remember: the High Commissioner depends on the states for her political support, for the political support of the office, and especially at a time when now we’re going to a new election for the position, there might be another candidate for that post and that makes the High Commissioner very vulnerable to pressures of major governments who have something to say about whether she stays or not. And the one way that you can appease government is by making sure that you’re not going to have special mandates and special procedures going and stepping on governments’ toes, or doing things that are going to embarrass governments.

Piccone: Well that is going to be a very interesting story to watch unfold and I want to thank you so much for your time. Hats off to you for all the contributions that you’ve made to human rights around the world and I hope you can stay in touch with us. If anyone is interested, they can read more about the book at Brookings.edu. Thank you.

Bassiouni:

Thank you Ted, and congratulations on your book.