Developments of Explicitly Addressing Atrocity Prevention in the Third Cycle of

CHAPTER IV: ANALYSIS

4.3. Practice of Explicitly Addressing Atrocity Prevention in the UPR

4.3.4. Developments of Explicitly Addressing Atrocity Prevention in the Third Cycle of

In this section the incorporation of the explicit atrocity lens in recommendations will be analysed in relation to the 28th Session of the UPR in November 2017. This session is particularly interesting as it was held after the publication of UNSG’s 2017 R2P Report.

Many interviewees have argued that it is very early to judge whether states will more explicitly integrate atrocity prevention, based on the recommendations of the UNSG in the 2017 R2P Report.²⁶⁰ Nevertheless, some of the interview persons pointed to one specific recommendation that stands out as a good example of integrating atrocity prevention

257 UPR-info Database, Keyword (s): atrocities crimes against humanity, genocide and war crimes.

258 HRC, Report of the Working Group on the Universal Periodic Review* Rwanda (18 December 2015) A/HRC/3178, (available at https://www.upr-info.org/sites/default/files/document/rwanda/session_23_-_november_2015/a_hrc_31_8_e.pdf), §133.7.

259 Silke KMH and Marie SC, Interview Representative of the Foreign Ministry of Switzerland, supra note 149.

260 Silke KMH and Marie SC, Interview Deputy Executive Director for GCR2P Pawnday, supra note 168; Silke KMH and Marie SC, Interviews Geneva-based diplomats; Silke KMH and Marie SC, Interview Representative of the Foreign Ministry of Switzerland, supra note 149, and Silke KMH and Marie SC, Interview Representative of WEOG state Foreign Ministry, supra note 144.

explicitly into the UPR.²⁶¹ This recommendation was given to Switzerland by the Netherlands and will be analysed below. Countries under review at the 28th Session included Argentina, Benin, Czechia, Gabon, Ghana, Guatemala, Japan, Republic of Korea, Pakistan, Peru, Sri Lanka, Switzerland, Ukraine, and Zambia.²⁶²

Benin, Gabon, Ghana, Japan, The Republic of Korea, and Zambia have received one recommendation explicitly on atrocity crimes. This was either:

“Ratify the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.”²⁶³

“Ratify the Convention on the Prevention and Punishment of the Crime of Genocide.”²⁶⁴

In all these cases the recommendations were given by Armenia. Armenia has in fact made these recommendations to all countries under review except Ukraine, Peru, Czechia, Guatemala, and Pakistan. These two recommendations were neither given to Argentina nor Switzerland, but Armenia gave these two countries other recommendations focusing explicitly on atrocity prevention. The recommendations to Argentina and Switzerland read:

261 Silke KMH and Marie SC, Interview Representative of WEOG state Foreign Ministry, supra note 144; Silke KMH and Marie SC, Interview Representative of the Foreign Ministry of Switzerland, supra note 149, and Silke KMH and Marie SC, Interview with Geneva-based diplomat.

262 UPR-info, “Session 28. November 2017”, UPR-info, accessed 27.11.17, (available at https://www.upr-info.org/en/session/Session-28---November-2017).

263 HRC, Draft Report of the Working Group on the Universal Periodic Review* Benin (14 November 2017), A/HRC/WG.6/28/L.9_Benin, (available at

https://www.upr-info.org/sites/default/files/document/benin/session_28_-_november_2017/a_hrc_wg.6_28_l.9.pdf), § 6.10. And HRC, Draft Report of the Working Group on the Universal Periodic Review* Gabon (21 November 2017), A/HRC/WG.6/28/L.3, (available at https://www.upr-info.org/sites/default/files/document/gabon/session_28_-_november_2017/a_hrc_wg.6_28_l.3.pdf), §118.13.

HRC, Draft Report of the Working Group on the Universal Periodic Review* Ghana (21 November 2017), A/HRC/WG.6/28/L.4, (available at https://www.upr-info.org/sites/default/files/document/ghana/session_28_-_november_2017/a_hrc_wg.6_28_l.4_.pdf), §147.35.

HRC, Draft Report of the Working Group on the Universal Periodic Review* The Republic of Korea (13 November 2017), A/HRC/WG.6/28/L.8, (available at

https://www.upr-info.org/sites/default/files/document/korea_republic_of/session_28_-_november_2017/a_hrc_wg.6_28_l.8.pdf),

§8.16.

264 HRC, Draft Report of the Working Group on the Universal Periodic Review* Japan (23 November 2017), A/HRC/WG.6/28/L.12, (available at https://www.upr-info.org/sites/default/files/document/japan/session_28_-_november_2017/a_hrc_wg.6_28_l.12.pdf), §161.26. And HRC, Draft Report of the Working Group on the Universal Periodic Review* Zambia (22 November 2017), A/HRC/WG.6/28/L.11, (available at

https://www.upr-info.org/sites/default/files/document/zambia/session_28_-_november_2017/a_hrc_wg.6_28_l.11.pdf), §131.18.

“Continue its active commitment on the international level for the prevention of genocide and crimes against humanity” (Armenia to Argentina).²⁶⁵

And

“Maintain the provisions of article 261bis of the Criminal Code, in particular the ones providing for liability in cases of denial, trivialization or seeking justification for genocide or

other crimes against humanity” (Armenia to Switzerland).²⁶⁶

These recommendations show that the integration of the explicit atrocity lens does not have to be focused on risks but can also highlight resiliencies. The integration here focuses on how Argentina is a frontrunner state, with the underlying notion that other states should be inspired by Argentina. Meanwhile, the recommendation to Switzerland is about maintaining an existing law, which Armenia views as beneficial.²⁶⁷ The recommendation to Switzerland has been accepted, while Argentina will provide a response in due time, no later than the 37th Session of the HRC in March 2018, which is the case with all recommendations Argentina have received. Nevertheless, it can with great certainty be argued that this recommendation will be accepted, given that it recommends continued action. In the 28th Session, Armenia is overall the most active state when it comes to incorporating atrocity prevention explicitly in recommendations. This is not surprising, considering that this was also the case in the first and second cycle of the UPR. In Armenia’s statement at the 2017 Informal Interactive Dialogue on the R2P, Armenia gave the UNSG’s prevention agenda absolute support, problematized the fact that many states have still not ratified core legal instruments for atrocity prevention, and underscored the importance of education. These two core issues have been reflected in previously given recommendations by Armenia.²⁶⁸Genocide recognition is

265 HRC, Draft Report of the Working Group on the Universal Periodic Review* Argentina (22 November 17), A/HRC/WG.6/28/L.2, (available at

https://www.upr-info.org/sites/default/files/document/argentina/session_28_-_november_2017/a_hrc_wg.6_28_l.2_0.pdf),

§107.9.

266 HRC, Draft Report of the Working Group on the Universal Periodic Review* Switzerland (22 November 2017), A/HRC/WG.6/28/L.7, (available at

https://www.upr-info.org/sites/default/files/document/switzerland/session_28_-_november_2017/a_hrc_wg.6_28_l.7.pdf),

§146.23.

267 *In 2007 the Swiss court convicted Doğu Perinçek for publicly denying the Armenian genocide in

accordance with article 261 bis (4) of the Swiss Criminal Code. In 2015 the European Court of Human Rights found that this conviction was a violation of article 10 (freedom of expression) of the European Convention on Human Rights, and ruled in favour of Perinçek.

- HRC, National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21*Switzerland (11 July 2017), A/HRC/WG.6/28/CHE/1, (available at

https://www.upr-info.org/sites/default/files/document/switzerland/session_28_-_november_2017/a_hrc_wg.6_28_che_1_e.pdf), § 69-70.

268 Armenia “Statement at the Informal Interactive Dialogue of the UNGA on the R2P”, New York, 6 September 2017, (available at http://www.globalr2p.org/media/files/2017-iid-armenia.pdf).

a central part of the Armenian foreign policy.²⁶⁹ This can explain why Armenia is significantly more focused on genocide and atrocity prevention in the UPR process than other states without this as a central element of their foreign policy and human rights strategy.

Other states that have given recommendations including wording on atrocities in both previous cycles and in the recently concluded 28th Session include the Netherlands, Estonia, Argentina, and Rwanda. Two recommendations to Switzerland from Rwanda and the Netherlands are particularly relevant for the operationalization of the UNSG’s recommendations in the 2017 R2P Report:

“Include in its next UPR report information on measures it has taken to implement article 261 bis of its criminal code in particular on combating denial, trivialisation or attempts to

justify genocide or other crimes against humanity” (Rwanda to Switzerland).²⁷⁰

“Further strengthen its engagement in the promotion of prevention of atrocities by undertaking efforts to prevent atrocities at the national level since history shows that no

country is immune to atrocities” (The Netherlands to Switzerland).²⁷¹

A Representative of the Foreign Ministry of Switzerland expressed that the accepted recommendation from the Netherlands opens up a good opportunity for follow-up in reporting and implementation.²⁷² Without such recommendations, it can be hard for those trying to advance the integration of atrocity prevention both in the Geneva context and in domestic political settings as this agenda is competing with many other human rights agendas.²⁷³ Furthermore, the wording “history shows that no country is immune to atrocities”

is highly relevant for combatting the focus on South countries, which has been identified when analysing explicit atrocity prevention in the two first cycles of the UPR. Interestingly, two sources interviewed for this thesis stated that Switzerland had requested this recommendation themselves.²⁷⁴ Showing that both Switzerland and the Netherlands are actively trying to combat this issue, as structural atrocity prevention is relevant for all

269 Ministry of Foreign Affairs of the Republic of Armenia, “Foreign Policy - Genocide Recognition”, accessed 15.11.17, (available at http://www.mfa.am/en/recognition/).

270 HRC, Switzerland, Draft Working Group Report 2017, supra note 266, §146.22.

271 HRC, Switzerland, Draft Working Group Report 2017, supra note 266, §146.25.

272 Silke KMH and Marie SC, Interview Representative of the Foreign Ministry of Switzerland, supra note 149.

273 Silke KMH and Marie SC, Interview Representative of the Foreign Ministry of Switzerland, supra note 149.

274 Silke KMH and Marie SC, Interview Geneva-based diplomat and Silke KMH and Marie SC, Interview Representative of WEOG state Foreign Ministry, supra note 144.

countries, not just countries with imminent risks. Although given at the 27th Session in the third cycle of the UPR, another explicit recommendation on atrocity prevention that must be highlighted is a recommendation by Rwanda to Finland:

“Consider including in its next universal periodic review report information on measures it has taken to analyse potential risk factors of atrocity crimes, including through utilization of

the Framework of Analysis for Atrocity Crimes”.²⁷⁵

This is probably one of the most relevant recommendations given for the operationalization of the UNSG 2017 R2P Report, as it is specifically referring to the UN Framework of Analysis for Atrocity Crimes. The recommendation has been accepted by Finland. In its response, Finland stated that the government is already following risk factors for atrocities.²⁷⁶ Studying previous statements by the Finnish Government, it becomes clear that Finland has, for years, had a focus on its national structures rather than exclusively seeing R2P as a foreign policy tool, despite Finland not being a high-risk country for atrocity crimes. Finland has focused on the prevention of discrimination, enhancing fundamental rights, worked with civil society and had the R2P Focal Point work towards mainstreaming R2P in the daily work of the national authorities.²⁷⁷ The Finnish government should be strongly encouraged to share best practices and utilize the UN Framework of Analysis for Atrocity Crimes at its next UPR, as this would set ground-breaking precedence. In the sense of shifting the focus away from the global south reaffirming that atrocity prevention is important in all countries. Even though the different recommendations to Switzerland and Finland are very positive for the explicit integration of atrocity prevention, the problem is again that the UPR is limited by its cycles.

Meaning that Finland and Switzerland will not report on these issues until their next UPR in 2022. Finland and Switzerland will write midterm reports, but as Hegarty highlighted the problem with midterm reports are that they are not always read.²⁷⁸ As mentioned, Argentina

275 HRC, Report of the Working Group on the Universal Periodic Review* Finland (14 July 2017), A/HRC/36/8, (available at https://www.upr-info.org/sites/default/files/document/finland/session_27_-_may_2017/a_hrc_36_8_e.pdf), §100.75.

276 HRC, Report of the Working Group on the Universal Periodic Review - Finland - Addendum - Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review (25 August 2017), (available at

http://formin.finland.fi/public/download.aspx?ID=170493&GUID=%7BB14A0CE7-D760-4EC2-A68E-369230C5AF71%7D) §93.75.

277 Finland, “Statement at the Informal Interactive Dialogue on the Report of the Secretary General on “The Responsibility to Protect: State Responsibility and Prevention”, New York, 11 September 2013, (available at http://responsibilitytoprotect.org/Finland%2013.pdf).

278 Silke KMH and Marie SC, Interview Programme manager at UPR-info Hegarty, supra note 149.

and Estonia also gave relevant recommendations for explicit atrocity prevention, to respectively Guatemala and Sri Lanka. The recommendation to Sri Lanka focused on ending impunity for war crimes.²⁷⁹ The recommendation to Guatemala focused on speeding up the progress of trials against the perpetrators of acts of genocide and crimes against humanity.²⁸⁰ Both recommendations have been noted. That recommendations can simply be noted is a limitation of the UPR with regard to atrocity prevention. However, the consent and cooperation of the state is the general condition of doing international peaceful prevention and not a challenge specifically limited to the UPR. Furthermore, noted recommendations should not always be disregarded. Noting a recommendation is not always an expression of unwillingness, as it can also be an issue of resources to implement recommendations within the 4,5 years time-frame.²⁸¹ Guatemala is a firm supporter of the R2P, and with the recommendation on “speeding up trials” it could be a question of resources. ^xxxii

There are also some new, quite surprising states, which have given recommendations with explicit wording on atrocities. These include Iran, Syria, and Nicaragua - countries which are perceived as consistent objectors of the R2P.

“Continue to avail international assistance for investigating war crimes and human rights training for security forces.” (Iran to Sri Lanka).²⁸²

“Put an end to violations and atrocities committed by governmental and loyalist forces in the context of the internal conflict in eastern Ukraine” (Syria to Ukraine).²⁸³

“Step up the efforts concerning the investigations of human rights violations and crimes against humanity during the military dictatorship from 1976 to 1983, and continue the prosecution of those responsible for these violations, strengthening the pillar on “Memory,

279 HRC, Draft Report of the Working Group on the Universal Periodic Review* Sri Lanka (23 November 2017) A/HRC/WG.6/28/L.14, (available at

https://www.upr-info.org/sites/default/files/document/sri_lanka/session_28_-_november_2017/a_hrc_wg.6_28_l.14.pdf) §117.36.

280 HRC, Draft Report of the Working Group on the Universal Periodic Review* Guatemala (21 November 2017), A/HRC/WG.6/28/L.6, (available at

https://www.upr-info.org/sites/default/files/document/guatemala/session_28_-_november_2017/a_hrc_wg.6_28_l.6.pdf) §113

281 UPR-info (“Beyond Promises”), supra note 70, p. 33.

282 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.69.

283 HRC, Draft Report of the Working Group on the Universal Periodic Review* Ukraine 23 November 2017, A/HRC/WG.6/28/L.13, (available at https://www.upr-info.org/sites/default/files/document/ukraine/session_28_-_november_2017/a_hrc_wg.6_28_l.13.pdf), §116.58.

truth, justice and reparatory policies” of the Action Plan on Human Rights” (Nicaragua to Argentina).²⁸⁴

The recommendation to Sri Lanka was accepted. There will be provided a response in due time, no later than the 37th Session of the HRC in March 2018, to the recommendations given to Ukraine and Argentina. Despite Nicaragua giving a recommendation to the US in the first cycle of the UPR, which indeed reflects a tense political relationship²⁸⁵, these states have not previously given recommendations with wording referencing atrocities.

The recommendation from Syria does predominantly reflect political tensions over the situation in Ukraine, as the four recommendations given by Syria seem to be well coordinated to support the ten recommendations made by Russia to Ukraine. Ten recommendations is a lot considering the general aim of many states to give two-three recommendations per review.²⁸⁶ Ukraine addressed the comments of Syria and Russia together and “underscored that illegal armed groups in Donbas continued to violate the ceasefire agreement, including the use of heavy artillery.”²⁸⁷ This shows the strained relations between the countries, which is not a good precondition for neither accepting recommendations or constructively supporting atrocity prevention efforts. Furthermore, the recommendation made by Syria loses credibility considering the atrocities committed by the Syrian regime.

Nevertheless, the recommendation from Iran is relevant as it speaks right into the R2P’s pillar two, by focusing on international assistance and training of security forces. The fact that Iran has made a recommendation with undeniable relevance for atrocity prevention means that the state is apparently not objecting incorporating atrocity prevention into the UPR. However, as argued in the analysis of State Acceptance of Integrating the R2P into the UPR”, if labelled

“R2P” this would probably be another story. At the 2017 Informal Interactive Dialogue on the R2P, Iran stated that the principles of the R2P could be valuable. However, Iran was very

284 HRC, Argentina Draft Working Group Report 2017, supra note 265, §107.70.

285*“Halt immediately the unjustified arms race and bring to justice those responsible for all war crimes and massacres against unarmed civilians, women, children as well as acts of torture carried-out in prisons such as Abu Ghraib, Bagram and Guantanamo” (N)

- HRC, Report of the Working Group on the Universal Periodic Review* United States (4 January 2011), (available at

https://www.upr-info.org/sites/default/files/document/united_states/session_9_-_november_2010/ahrc1611usae.pdf), §92.141.

286 Silke KMH and Marie SC, Interview Geneva-based diplomat; Silke KMH and Marie SC, Interview

Representative of the Foreign Ministry of Switzerland, supra note 149, and Silke KMH and Marie SC, Interview Argentinian Government Officials in the area of Human Rights, supra note 185.

287 HRC, Ukraine Draft Working Group Report 2017, supra note 283, §86.

critical towards its implementation.²⁸⁸ It could be argued that Iran is endorsing atrocity prevention in the recommendation above, even though the state is generally critical towards the R2P.

The recommendation from Nicaragua to Argentina also touches upon a relevant theme for atrocity prevention; justice for past crimes. This analysis shows that there are examples of consistent objectors of R2P using the UPR to support atrocity prevention efforts. However, this could be jeopardized if explicit R2P language is used in UPR recommendations, as these states will very likely distance themselves as they have done so far whenever debating R2P.

4.3.5. Interim Conclusion

In this sub-analysis, it has been argued that the use of R2P language in UPR recommendations is important to set precedence, but R2P language should not be prioritized over making the recommendations related to atrocity prevention that are most likely to be accepted and have an impact on the ground. Therefore, the use of R2P language must be decided on a case-to-case basis, considering issues such as the SuR’s view on R2P and imminent risks of atrocities. The practice of using R2P language is almost non-existing in all cycles of the UPR, and it will be a long process, largely depending on frontrunner states, to increase practice. The added value of using R2P language is that it denotes a political commitment and gives recommendations a specific aim directly supporting atrocity prevention efforts.

In the two first cycles of the UPR, the practice of explicitly referencing atrocity crimes is quite limited. In total there exist 274 of such recommendations, none of which refers to ethnic cleansing. When comparing the different recommendations with the inclusion of wording on atrocity crimes, most focus on the justice aspect of prevention and ensuring non-recurrence, hence countries with histories of atrocities or impending risks of atrocities. Furthermore, there is a disproportionate focus on member states from the African Group. It is perhaps quite reasonable that the focus is on countries with high risk and not low-risk countries. However, the regional imbalance could be problematic for the integration of the R2P if not addressed.

在文檔中 The UN’s Universal Periodic Review and the Prevention of Atrocity Crimes (頁 73-81)