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On 20 June 2022, the House of Lords is scheduled to debate the following question for short debate:

Lord Naseby (Conservative) to ask Her Majesty’s Government whether they will discuss with the UN human rights council the use of unpublished evidence in its inquiries; and why they wait to be asked to supply relevant material for the council’s inquiries.

1. What is the UN human rights council?

The UN human rights council (HRC) is the main intergovernmental body within the UN responsible for “strengthening the promotion and protection of human rights around the globe”, and for “addressing and taking action on human rights violations”. It responds to human rights emergencies and makes recommendations on how to better implement human rights. The council has the mandate to discuss all thematic human rights issues and country-specific situations that require attention.

The council is made up of 47 UN member states, which are elected by the UN general assembly. Members of the council are elected for three-year terms, with one-third of the members being renewed each year. Council membership is based on equitable geographical distribution of seats. The council has a bureau which consists of a president and four vice-presidents who represent the five regional groups: African states; Asia-Pacific states; Latin American and Caribbean states; Western Europe and other states; and Eastern European states. They each serve for a year. Federico Villegas is president for 2022. Staff from the office of the high commissioner for human rights (OHCHR) serve as the secretariat.

Among the council’s subsidiary bodies are the universal periodic review mechanism (UPR), the advisory committee, the complaint procedure, and the special procedures. Mandate holders of special procedures undertake country visits; respond to individual cases of a broader concern; conduct thematic studies; contribute to the development of international human rights standards; raise public awareness; and provide advice and advocacy.

The council can also establish international independent commissions of inquiry and fact-finding missions to investigate and respond to human rights violations.

2. What are UN commissions of inquiry and fact-finding missions?

The UN mandates commissions of inquiry, fact-finding missions, and investigations into violations of humanitarian law and international human rights law. They are tasked with investigating allegations of such violations, promoting accountability, and making recommendations for “corrective action based on their factual and legal findings”. Commissions, missions, and investigations have been established to assess situations of human rights and humanitarian law violations across the world, including in the former Yugoslavia, Darfur, Timor-Leste, Lebanon, Guinea, Côte d’Ivoire, Libya, the occupied Palestinian territory, the Syrian Arab Republic, the Democratic People’s Republic of Korea, Sri Lanka and the Central African Republic.

As well as by the HRC, these international investigative bodies have been established by the UN security council, the general assembly, the secretary-general, the high commissioner for human rights, and the predecessor to the HRC, the commission on human rights. As part of its core work, the OHCHR provides expertise, administrative, logistical and security support to these investigative bodies, and carries out missions as mandated.

The precise terms of the mandates given to these investigative bodies have “varied considerably”, depending on the nature of the alleged violation, and the purpose of the inquiry. In some instances, the mandate has covered an entire country, while in others it has covered only part. Some mandates have related to specific events. However, other mandates defined longer periods for investigation, with “varying degrees of precision”. Many of the inquiries were given a general mandate to investigate alleged violations of human rights and international humanitarian law.

The composition of the body normally rests with the mandating authority, such as the HRC. However, there have been some instances where the secretary-general has been asked to appoint members. With regard to HRC-mandated inquiries, the president of the council generally seeks advice and views about possible candidates from UN member states, the OHCHR, and non-governmental organisations (NGOs).

As of May 2022, the HRC has established 36 such commissions and missions, with eight currently active.

3. How do commissions of inquiry and fact-finding missions gather and share information?

The UN has a set of principles and standards for all fact-finding missions and commissions of inquiry under its authority. Commissions of inquiry and fact-finding missions mandated by the UN to investigate violations of international human rights and humanitarian law are required to adhere to these principles:

  • do no harm
  • independence
  • impartiality
  • transparency
  • objectivity
  • confidentiality
  • credibility
  • visibility
  • integrity
  • professionalism
  • consistency

UN guidance states the investigative bodies must reflect these principles in their methods of work and rules of procedure. This information should be made public, along with details of the body’s mandate and about how to contact the investigation. The body must set out what sources of information it will use; how it will gather the information; how it will assess and verify the information; how it will ensure the confidentiality and protection of information; and how it will ascertain the consent of sources on the use of information provided to the inquiry.

Interviewing is one of the most common methods used by these bodies to gather information. An investigator has to obtain the informed consent of an interviewee or source to use and share the information. The consent has to be specific regarding how the information can be used and the entity with which it can be shared. For example, sources may agree that the information they provided can be used in the final report, but without disclosing their identity. Or sources may agree to it being shared with local NGOs, but not with local authorities. In the absence of consent, UN guidance states that the information should not be shared. It says that even if there is consent, it may be necessary to edit or redact the original materials before sharing them, either to protect sources or in accordance with privacy rules.

In terms of handling and storing sensitive information, the UN’s standards require that inquiries establish internal guidelines to preserve the confidentiality of sources and the security of information. In order to ensure that sensitive information is handled appropriately, the investigative body must identify what information needs to be classified, and at what level. They are required to set up secure information management systems with controlled access, to store, manage, and protect confidential and sensitive information.

4. What information is contained in the reports?

UN human rights reports are required to apply the following standards:

  • respect confidentiality of information and informed consent
  • include facts and analysis, and clearly identify each
  • be based on corroborated information
  • integrate a gender analysis and use gender-sensitive language
  • be action-oriented with a few concrete, practicable and time-bound recommendations
  • explain the methodology used

OHCHR’s manual on human rights reporting stipulates that investigation reports should be factual, analytical, detailed and well documented. The manual states that when preparing an investigation report, human rights officers (HROs) need to ensure the report is founded on corroborated information, resulting from a thorough investigation based on sound methodology (using a wide range of sources, and wherever possible through on-site visits). The report needs to explain the methodology used to gather and corroborate the information. Where HROs are unable to corroborate certain facts or confirm the credibility of a source, it should be clearly stated in the report, and separated from corroborated data in the document.

Generally, human rights violations reported in public reports should meet the threshold of “reasonable grounds to believe that such violations occurred”, according to the OHCHR’s manual on human rights reporting. This means that there must be corroborated facts or information which would “satisfy an objective observer that the violation is likely to have occurred”. More serious allegations may require a higher standard of proof.

All information gathered through interviews that is included in a report must be based on prior informed consent. HROs have the responsibility to assess the risk of harm to the source before including it in the report. If the assessment confirms a threat or risk of harm, the information cannot be reported. If interviewees do not consent to the information they provided being included in a report, it cannot be used unless it can be presented in an aggregated manner with no individual identifiers. For instance, it may be possible to use the data for statistical purposes.

Reports of UN-mandated investigations into alleged human rights violations should generally be made public. Reports presented to the HRC are usually published ahead of their formal presentation to the council. In some instances, unedited reports have been given to the relevant state and other parties concerned (such as armed opposition groups) with a request for comments within a specific time. Once published, the report becomes a UN document. However, its findings and conclusions remain independent by virtue of the mandate. In most instances, the mandating body, such as the HRC, will consider the report and adopt a resolution endorsing all its conclusions and recommendations or aspects of it, and calling for them to be implemented accordingly.

A number of commentators agree that the credibility of these reports is affected by the level of transparency, public disclosure of information, and documentation of evidence. For instance, Ted Piccone from the Brookings Institution argues the public disclosure of a well-documented and credible account of specific human rights abuses is a “form of accountability”: it is the “international community’s contribution to fulfilling the right to truth”. Mr Piccone explains:

[…] criteria for evaluating the degree of moral accountability that fact-finding missions can generate are the level of transparency of the COI’s [commission of inquiry’s] methodology, protection and proper treatment of witnesses, and wide and accessible dissemination of the final report’s findings and conclusions, including in the languages of the country concerned.

The UN human rights instrument on the investigation and documentation of torture and other ill-treatment, adopted by the general assembly in 2000, states that reports produced by independent investigative commissions should describe in detail the specific events that occurred and the evidence on which its findings were based. It also states that the report should list the names of the witnesses who testified, with the exception of those “whose identities have been withheld for their own protection”.

The issue of disclosure of information and transparency of sources used in UN-mandated reports on human rights violations has been raised in Parliament by Lord Naseby (Conservative). He has questioned why certain sources of evidence used in several UN-mandated inquiries investigating events during the civil war in Sri Lanka in 2009 have not been made publicly available or have been “heavily redacted”. Lord Naseby has called for some of these redactions to be “removed forthwith”.

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Cover image by Siavosh Hosseini on Unsplash.