R2P Language in the Two First Cycles of the UPR

From the first and second cycle of the UPR there only exist very few recommendations with the inclusion of the wording “responsibility to protect”. Most of the recommendations with this wording essentially focus on the UN Declaration on the Protection of Human Rights Defenders.²⁰⁷ These recommendations are relevant for building resilience towards atrocity crimes; however, the goal is not explicitly to prevent atrocity crimes. Norway is the recommending state most frequently using wording that could be interpreted as R2P language. As an example, in Hungary’s first UPR, Norway recommended that Hungary

”Reconcile policies related to ethnic Hungarians abroad with neighbouring countries

207 *The UN Declaration on the Protection of Human Rights Defenders is a commonly used abbreviation for UNGA Resolution 53/144, The United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, A/RES/53/144 (8 March 1999), (available at

http://www.ohchr.org/Documents/Issues/Defenders/Declaration/declaration.pdf).

primary responsibility for minority protection”.²⁰⁸ In 2001 Hungary adopted the “Act on Hungarians Living in Neighbouring Countries”, which was highly criticised by the neighbouring countries for interfering in their domestic affairs and violating the principle of sovereignty.²⁰⁹ In this sense, Norway’s recommendation focuses on the external commitment to respect the sovereignty of other states, which constitute one part of the principle of

“sovereignty as responsibility” that the pillars of the R2P build on. Another example of Norway using wording that centers around aspects of the R2P’s pillar one is a recommendation to El Salvador, where Norway focuses on the training of police officers to carry out their responsibility to protect the population efficiently and with integrity.²¹⁰ Of the recommendations with wording that can be interpreted as R2P language, this is the most clear-cut example, supported by the fact that Norway is an active R2P supporter. Another interesting example in this regard is the following by Nigeria, recommending Equatorial Guinea to “seek international assistance in the area of systematic training of law enforcement officials on their responsibility to protect human rights”.²¹¹ This example resembles the focus of the R2P’s pillar two i.e. international assistance and capacity building. However, the scope of the “responsibility to protect human rights” is too wide to call this an explicit integration of the R2P into a UPR recommendation, as the R2P is limited to the four specific crimes. A similar recommendation was made by Canada to the Philippines in the first cycle of the UPR

“Ensure that members of the security forces are trained on human rights and on their responsibility to protect human rights and human rights defenders”.²¹² If implemented properly, such a recommendation would indirectly support the implementation of the R2P’s pillar one. However, this recommendation is again pointing to a more general responsibility to protect human rights.

208 HRC, Report of the Working Group on the Universal Periodic Review* Hungary, (11 November 2011), A/HRC/18/17, (available at https://www.upr-info.org/sites/default/files/document/hungary/session_11_-_may_2011/ahrc1817hungarye.pdf), §95.23.

209 Nicholas Turner and Nanako Otsuki, “The Responsibility to Protect Minorities and the Problem of the Kin-State”, Policy Brief United Nation University, no. 2, 2010, p. 2.

210 HRC, Report of the Working Group on the Universal Periodic Review* El Salvador (17 December 2014), A/HRC/28/5, (available at https://www.upr-info.org/sites/default/files/document/el_salvador/session_20_-_october_2014/a_hrc_28_5_e.pdf), §105,40.

211 HRC, Report of the Working Group on the Universal Periodic Review* Equatorial Guinea (4 January 2010), A/HRC/13/16, (available at https://www.upr-info.org/sites/default/files/document/equatorial_guinea/session_6_-_november_2009/ahrc1316equatorialguineae.pdf), §14.

212 HRC, Report of the Working Group on the Universal Periodic Review* Philippines (23 May 2008), A/HRC/8/28, (available at https://www.upr-info.org/sites/default/files/document/philippines/session_1_-_april_2008/ahrc828philippinese.pdf), §58.2.

The limited practice of using R2P language can be interpreted as the result of the fact that the integration of the R2P into the UPR is a new agenda. In some cases, the increased use of R2P language could add value as it provides a more systematic and prioritised focus in recommendations. However, interviews showed that the R2P can be a difficult label to use in the Geneva context.²¹³ Nevertheless, many of the interviewees agreed that the preventive aspects of the R2P are not contested in the broader Geneva context.²¹⁴ Some interviewees stated that it is not always helpful to use the R2P label, why they were of the opinion that it is irrelevant whether the UPR is used for atrocity prevention with an explicit reference to the R2P (or with the use of R2P language) as long as situations, where there are risks of atrocities, are addressed.²¹⁵ Some even argued that using R2P language could be counterproductive.²¹⁶ Contrary, Pawnday from GCR2P in New York argued that R2P language is always important as it sets precedence. R2P is a political commitment, and promoting the language of the R2P denotes that obligation. Therefore, the Group of Friends of the R2P and supporters should use the language to set precedence. In this sense, Pawnday argued that R2P language not only strengthens atrocity prevention efforts but also emphasize the concrete commitment states made through the R2P to uphold protection.²¹⁷ Pawnday elaborated that it will be a long-term process before the use of relevant language is frequently used in practice, and the process will require states setting precedence. GCR2P are advocating this, by encouraging the R2P focal point states to reference the R2P in the UPR.²¹⁸

As argued and elaborated in section “4.2.1. Account of the Informal Interactive Dialogue on the R2P 2017”, p. 48, the issue of the R2P being perceived as selective and politicised have been observed in various statements by states at the 2017 Informal Interactive Dialogue on the R2P. For example, Pakistan stated that the integration of R2P into the UPR could lead to

213 Silke KMH and Marie SC, Interview EEAS Official, supra note 162; 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 Representative of WEOG state Foreign Ministry, supra note 144.

214 Silke KMH and Marie SC, Interview EEAS Official, supra note 162; 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 Representative of WEOG state Foreign Ministry, supra note 144.

215 Silke KMH and Marie SC, Interview EEAS Official, supra note 162; Silke KMH and Marie SC, Interview Professor and Director of the Asia Pacific Centre for the R2P Bellamy, supra note 175, and Silke KMH and Marie SC, Interview Geneva-based diplomat.

216 Silke KMH and Marie SC, Interview Geneva-based diplomats and Silke KMH and Marie SC, Interview Executive Director for URG Limon, supra note 138.

217 Silke KMH and Marie SC, Interview Deputy Executive Director for GCR2P Pawnday, supra note 168.

218 Ibid.

the politicization of UPR, which should be avoided.²¹⁹ Countering this argument, Pawnday stated that all international processes, including the UPR, are already inherently political.

Comparing these arguments, it can be argued that the use of the R2P language in the UPR is important to set precedence, but it should not be prioritized over making the recommendations related to atrocity prevention that are most likely to have an impact on the ground. Therefore, the use of R2P language must be decided on a case-to-case basis, here included considering the SuR’s view on the R2P. However, regardless of the SuR’s view on the R2P, in the UPRs of states with on-going or imminent risks of atrocities it could be argued, that it would be inappropriate not to use R2P language to underline the seriousness of atrocity crimes and the commitment to the R2P.

Despite the example of Norway, there does not exist any clear-cut examples of integrating the R2P explicitly into the UPR in the two first cycles. However, as will be presented in the following sections, there do exist some examples of integrating an explicit atrocity lens with a specific focus on the four atrocity crimes. It is important to analyse current practice of this to identify challenges, as well as good practices and frontrunner states with the ability to push the agenda forward and set precedence.^xxviii

4.3.2. Practice of Explicitly Referencing Atrocity Crimes in the First Two Cycles of the