Dear colleagues, The 66th Inter Agency Standing Committee (IASC) Working Group meeting (New York, 15-17 November 2006) endorsed the revised Guidance Note on Using the Cluster Approach to Strengthen Humanitarian Response, and decided to disseminate this note to the field through the Humanitarian Coordinators. This was done on 29 November 2006.
This Guidance Note is relevant and important to OHCHR because of the global policy towards greater cooperation and complementarity with Humanitarian agencies. It is also of particular importance with regard to the protection cluster. (UNHCR is the Cluster Lead for Protection in situations of population displacement while OHCHR and UNICEF share UNHCR leadership in all other situations).
The 'Cluster Approach' is one of the three pillars of the UN humanitarian reform (together with the Central Emergency Relief Fund and the strengthened role of Humanitarian Coordinators). As described in the Guidance Note, the Cluster Approach is a process that aims at increasing overall coordination of humanitarian initiatives at the global and field levels. The basic concept is that while some sectors of humanitarian work are relatively straightforward, both in terms of substance and responsibility (e.g. food), coordination in other areas is blurred. Areas that require a multi-sectoral approach with the intervention of a variety of actors – sometimes with very distant mandates – are called Clusters.
The Cluster Approach defines these areas where enhanced coordination is needed, establishing global and country responsibilities ('Cluster Leads'). Cluster Leads have the responsibility to ensure coordination (but not performance) of the partners of a given cluster at the country level. They are accountable to the Humanitarian Coordinators. At the global level, Cluster Leads ensure that the relevant backstopping to specific country situations is provided and that the relevant tools are developed to support humanitarian workers during crisis. It should be noted that OHCHR has mainstreaming responsibilities with regard to all clusters.
The Guidance Note was drafted with the inputs of all IASC partners - including OHCHR - and during the course of 2006 it was rolled out in a number of selected countries for testing: DRC, Uganda, Liberia, Somalia, Lebanon and Pakistan. IASC partners have also agreed that the Cluster Approach should eventually be applied in all countries with Humanitarian Coordinators (see attached list), underlining that Humanitarian Country Teams under the leadership of the Humanitarian Coordinator should drive this process, in order to ensure proper ownership and further refinement of this document. During 2007, the IASC is going to support a number of initiatives aimed at facilitating the implementation of the Guidance Note (including training and the development of guidance tools).
As some of you are closely working with humanitarian partners in countries where the Cluster Approach has been already implemented or where it will be implemented soon (it is also decided that the Cluster Approach will be applied in all new humanitarian emergencies requiring a multidimensional response), I encourage you to familiarise yourself with the Guidance Note and extend your collaboration to Humanitarian Coordinators and IASC partners in its implementation.
Should you have queries or comments on the Guidance Note, the IASC or the UN humanitarian reform, please address these to Giuseppe Calandruccio, at gcalandruccio@ohchr.org.
For more information on the IASC, you can consult http://www.humanitarianinfo.org/iasc/
With best wishes,
Sunday, April 1, 2007
UN moves to transfer Taylor trial
June 16, 2006
Moves to transfer former Liberian leader Charles Taylor to the Dutch city of The Hague are under way. The British ambassador to the UN said a draft resolution which would allow the transfer to go ahead is ready to go before the Security Council. A UN-backed tribunal in Sierra Leone, where Mr Taylor is on trial, wants the case moved for security reasons.
Mr Taylor faces war crimes charges in relation to Sierra Leone's civil war. He is accused of backing rebels in the decade-long war in which up to 50,000 people died. On Thursday, the British government said Mr Taylor could serve a prison sentence in the UK if he was convicted of war crimes.
Notorious
The Dutch government said this meant all conditions had been met for his trial to be moved to The Hague, after other European countries had refused to host him.
It had agreed to host Mr Taylor's trial, still conducted by the Special Court for Sierra Leone, as long as he was imprisoned in another country if he was convicted.
British Foreign Minister Margaret Beckett said the UK's decision showed Britain's "commitment to international justice".
Both Sierra Leone and Liberia are recovering from years of conflict, in which Mr Taylor played a central role.
Liberia's President Ellen Johnson-Sirleaf, who took office in January, said she feared that putting Mr Taylor on trial in West Africa could lead to renewed instability.
Britain, the former colonial power in Sierra Leone, sent troops to help oust rebels from the capital, Freetown in 2000.
Sierra Leone's Revolutionary United Front rebels were notorious for mutilating civilians, by hacking off their arms or legs with machetes.
Moves to transfer former Liberian leader Charles Taylor to the Dutch city of The Hague are under way. The British ambassador to the UN said a draft resolution which would allow the transfer to go ahead is ready to go before the Security Council. A UN-backed tribunal in Sierra Leone, where Mr Taylor is on trial, wants the case moved for security reasons.
Mr Taylor faces war crimes charges in relation to Sierra Leone's civil war. He is accused of backing rebels in the decade-long war in which up to 50,000 people died. On Thursday, the British government said Mr Taylor could serve a prison sentence in the UK if he was convicted of war crimes.
Notorious
The Dutch government said this meant all conditions had been met for his trial to be moved to The Hague, after other European countries had refused to host him.
It had agreed to host Mr Taylor's trial, still conducted by the Special Court for Sierra Leone, as long as he was imprisoned in another country if he was convicted.
British Foreign Minister Margaret Beckett said the UK's decision showed Britain's "commitment to international justice".
Both Sierra Leone and Liberia are recovering from years of conflict, in which Mr Taylor played a central role.
Liberia's President Ellen Johnson-Sirleaf, who took office in January, said she feared that putting Mr Taylor on trial in West Africa could lead to renewed instability.
Britain, the former colonial power in Sierra Leone, sent troops to help oust rebels from the capital, Freetown in 2000.
Sierra Leone's Revolutionary United Front rebels were notorious for mutilating civilians, by hacking off their arms or legs with machetes.
Economic Impact of Peacekeeping Project
Dear Bipin Adhikari,
We are writing to provide you with an update on the Economic Impact of Peacekeeping project.
Thanks to the assistance of you and other colleagues in the UN, the project team successfully completed fieldwork in nine missions and was able to complete the first quantitative assessment of the economic footprint of peacekeeping. The findings were surprising in many regards. Most notably, the project determined that missions do not create widespread inflation beyond a few sectors such as the high-end rental market. They do, however, create severe distortions in the local labour market. Nonetheless, the overall impact of local spending was overwhelmingly positive. The final report documents over 30 recommendations from UN staff on how to increase local spending and enhance the strategic impact of the mission. We have attached a one page fact sheet that summarizes the findings of this project. The complete EIP report can be found here:
http://www.peacedividendtrust.org/EIP.htm
Once again, thank you for assisting this project.
Best Regards,
Scott Gilmore
Executive Director
Peace Dividend Trust
Economic Impact of Peacekeeping Project: Fact Sheet
Project Findings:
• Restoring peace is the single biggest impact of UN peacekeeping missions.
• In 8 of the 10 missions studied less than 10% of the mission budget entered the local economy,
the average being 5% over the lifespan of the mission.
• Individual UN staff spending of Mission Subsistence Allowance (MSA) accounted for half of the
missions local impact.
• Even this small amount of local spending can kick start economic recovery, however, and does
more good than harm.
• As evidence of the positive impact, the missions’ contribution to GDP ranged from 1-10%.
• Contrary to conventional wisdom, inflation is generally limited to high-end sectors servicing
internationals and is not widespread in the economies.
• But mission staffing and wage policies were identified as having the biggest negative impact
drawing scarce skilled staff from the local public and private sector and creating severe wage
inflation in the local economy.
Key Recommendations:
• There is considerable room to improve the economic impact of peacekeeping missions that in
turn will facilitate economic recovery and support peacebuilding.
• Increasing field procurement provides the best opportunity to enhance the economic impact of
missions.
• The value for money principle must be maintained when increasing local procurement. It is
preferable to improve local access to tendering rather than provide special treatment.
• Missions should raise awareness among international staff of the important positive impact of
personal spending
• UN should revise its policy for setting national staff wages. Local out-sourcing may provide the
most feasible solution.
For more info: www.peacedividendtrust.org or www.peacekeepingbestpractices.unlb.org
We are writing to provide you with an update on the Economic Impact of Peacekeeping project.
Thanks to the assistance of you and other colleagues in the UN, the project team successfully completed fieldwork in nine missions and was able to complete the first quantitative assessment of the economic footprint of peacekeeping. The findings were surprising in many regards. Most notably, the project determined that missions do not create widespread inflation beyond a few sectors such as the high-end rental market. They do, however, create severe distortions in the local labour market. Nonetheless, the overall impact of local spending was overwhelmingly positive. The final report documents over 30 recommendations from UN staff on how to increase local spending and enhance the strategic impact of the mission. We have attached a one page fact sheet that summarizes the findings of this project. The complete EIP report can be found here:
http://www.peacedividendtrust.org/EIP.htm
Once again, thank you for assisting this project.
Best Regards,
Scott Gilmore
Executive Director
Peace Dividend Trust
Economic Impact of Peacekeeping Project: Fact Sheet
Project Findings:
• Restoring peace is the single biggest impact of UN peacekeeping missions.
• In 8 of the 10 missions studied less than 10% of the mission budget entered the local economy,
the average being 5% over the lifespan of the mission.
• Individual UN staff spending of Mission Subsistence Allowance (MSA) accounted for half of the
missions local impact.
• Even this small amount of local spending can kick start economic recovery, however, and does
more good than harm.
• As evidence of the positive impact, the missions’ contribution to GDP ranged from 1-10%.
• Contrary to conventional wisdom, inflation is generally limited to high-end sectors servicing
internationals and is not widespread in the economies.
• But mission staffing and wage policies were identified as having the biggest negative impact
drawing scarce skilled staff from the local public and private sector and creating severe wage
inflation in the local economy.
Key Recommendations:
• There is considerable room to improve the economic impact of peacekeeping missions that in
turn will facilitate economic recovery and support peacebuilding.
• Increasing field procurement provides the best opportunity to enhance the economic impact of
missions.
• The value for money principle must be maintained when increasing local procurement. It is
preferable to improve local access to tendering rather than provide special treatment.
• Missions should raise awareness among international staff of the important positive impact of
personal spending
• UN should revise its policy for setting national staff wages. Local out-sourcing may provide the
most feasible solution.
For more info: www.peacedividendtrust.org or www.peacekeepingbestpractices.unlb.org
Draft Policy Paper on Trial Observation
May 18, 2006
The High Commissioner has asked the Rule of Law and Democracy Unit to take the lead in preparing a policy paper on trial observation. It was understood that this policy paper would be developed in consultation with all colleagues in the Office. Please find attached a draft policy paper for your review. If you have any comments, observations or suggestions, please forward them to me no later than 16 June 2006. After your comments are received, an informal meeting will be organized in Geneva to discuss the draft policy paper with a view to revising it as appropriate.
Draft Policy Paper on Trial Observation
Prepared by Robert Husbands, Rule of Law and Democracy Unit, OHCHR (17 May 2006)
Introduction
This draft policy paper sets out information about experiences of the United Nations, and OHCHR in particular, with trial observation. It also makes reference to the work of the OSCE, which has considerable experience in this area. Preliminary conclusions and recommendations are also enclosed.
A significant number of OHCHR staff contacted in the preparation of this paper had little knowledge of the subject of trial observation. A lack of documentation concerning trial observation in general was identified as a problem within OHCHR institutionally in the process of researching this paper. Therefore, an annex to this paper is included, which provides basic information relating to the goals of trial observation, basic fair trial criteria, and processes that have been identified by OHCHR and prominent NGOs about how trial observation should be done.
I. The United Nations and trial observation
A. Human rights standards and relevant OHCHR publications
The right to a fair trial is designed to protect individuals from unlawful and arbitrary deprivation of their basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. These rights are guaranteed, inter alia, by Article 14 of the International Covenant on Civil and Political Rights (ICCPR), and as such falls within the mandate of the High Commissioner to promote and protect human rights.
Trial monitoring is undertaken to evaluate the fairness of trials and their compliance with the standards set out in the laws of the State concerned, the ICCPR and other international[1] and regional human rights instruments[2], and customary international law[3]. OHCHR’s Training Manual on Human Rights Monitoring has a chapter entitled “Trial Observation and Monitoring the Administration of Justice”, that is devoted entirely to this subject.[4] More recently, two publications of OHCHR, Monitoring Legal Systems and Mapping the Justice Sector[5], address issues relating to trial monitoring in post-conflict states. OHC In addition to these OHCHR publications, a number of books and articles on trial monitoring have been published by other human rights organizations, most prominently by international and national NGOs.[6] These publications diverge in the level of detail, but rarely on issues of substances. They normally include the rationale for trial monitoring; the relevant standards to be observed, usually in a checklist form with a separate commentary on interpretation of individual criteria; and practical guidance on how monitoring should be done.
B. Trial observation by OHCHR, UN field presences and the OSCE[7]
The United Nations has periodically engaged in trial monitoring, and it has been considered by the United Nations, other international organizations, States and NGOs as a useful tool to encourage States to respect international and regional fair trial standards in high-profile trials, frequently of a political character, and more recently to assist in the evaluation of justice sector reform. Trial observation by the United Nations does not appear to be very well documented in official reports, even though such programmes are exist or have existed, in some cases on a fairly sizeable scale.
Official documentation as well as informal published documentation relating to the trial monitoring experiences of OHCHR and UN field presences is limited. A lack of documentation is sometimes attributable to the fact that frequently the reports of monitoring are not made public.
Occasionally, OHCHR has monitored or requested to monitor high profile cases as well, although this appears to be a relatively rare occurrence.[8] On one occasion, an OHCHR official was designed by the Secretary-General to undertake a mission of trial observation concerning the appeal of a member of the United Nation Trust Fund for Victims of Contemporary Forms of Slavery who had already been arrested, tried and imprisoned. The trial observation mission was predicated on the position of the United Nations that the expert’s arrest, trial and imprisonment was inconsistent with the immunity he should be accorded to freely carry out his functions as a member of this UN body.[9] Trial observation frequently appears to not only have the purpose of monitoring sensitive trials at the national level to detect interference with the independence of the judiciary and compliance with international standards, but also a broader goal of assessing the implementation of judicial reforms with a view to detecting areas where further attention may be warranted in providing technical assistance during an ongoing judicial reform process.
Trial monitoring by the UN has occurred with some regularity in, for example, Bosnia and Herzegovina, Cambodia, Columbia, Democratic Republic of the Congo, Georgia, Haiti, Kosovo, Liberia, Rwanda, Serbia and Montenegro, and Timor Leste. [10] Details in official reports are somewhat summary, when mentioned at all. For example, in a report of the Secretary-General on the role and achievements of OHCHR in assisting the Government and people of Cambodia in the promotion and protection of human rights, there is only a brief mention of trial monitoring, which states: “The Office observed trials on a selective basis. In certain cases, the Office facilitated medical, legal and other forms of assistance to victims.” Related information was reported, but again only in summary form:
“The Office continued to monitor conditions of detention and imprisonment and the enforcement of court orders. Shortage of food and inadequate medical assistance to inmates were of continuing concern. Many reports were received of cases where suspects were not legally represented in court because of the shortage of lawyers in Cambodia, or were tried in absentia due to the lack of transportation to take them from the detention centres to the court.”
Similarly, in a report to the Security Council on the situation in Georgia, it was
reported briefly that “The United Nations Human Rights Office in Sukhumi …continued to monitor court trials and places of pre-trial detention.”
In Kosovo, there is an active legal system monitoring programme that is carried out within the framework of the United Nations Mission in Kosovo (UNMIK), which includes trial observation. The programme is administered by the OSCE, which has extensive trial observation programmes in a number of the countries in the Balkans. It has been reported that there are five international staff and five national staff, who, inter alia, undertake trial observation on a regular basis, and publish a report every six months on key subjects of concern and trends in the evolution of the criminal justice system, with some reports focusing on thematic areas.[11] This periodic reporting was designed to alert UNMIK and donors about the situation within a realistic time frame and enable them to make timely decisions on changes in the programme.
It has been reported that the legal monitoring programme undertaken in Kosovo has served as a model for programmes run by the Department of Peace Keeping Operations (DPKO) in Liberia and Haiti. Liberia has an extensive programme with approximately 50 rule of law personnel, a number of whom engage in trial observation.[12]
In Bosnia and Herzegovina, the UN field mission engaged in a comprehensive approach to trial observation with a view to assessing the status of the judiciary and the need for judicial reform. The Judicial System Assessment Programme (JSAP) was set up by the United Nations Mission in Bosnia and Herzegovina in late 1998, under a Security Council resolution, to “monitor and assess” the court system as part of the overall programme of judicial reform coordinated by the Office of the High Representative. JSAP considered all aspects of the judicial system, including civil and administrative cases and the institutional framework and political environment in which the judiciary operates, from a rule of law perspective that was not limited to human rights issues.[13] The JSAP programme ended in November 2002, and subsequently the OSCE took the lead role in legal system monitoring. A trial observation team that consists of approximately 35 local staff and international staff regularly engages in trial observation in every district of the country, and concentrates on monitoring the domestic prosecution of war crimes before the cantonal courts and on the implementation of the criminal procedure code.[14] The coordinator of OSCE field mission in Bosnia and Herzegovina indicated at a meeting with member States of the OSCE in May 2006 that the trial observation programme was the key element of the field mission’s programme to assist in the implementation of judicial reform in the country.
Interestingly, the OSCE approach is not the same in all of the countries of the Balkans where it has field missions that engage in trial observation. Although in Serbia and Montenegro, the OSCE does engage in limited trial observation of cases involving war crimes and organized crime, the vast majority of its resources are focused on providing technical assistance. Discussions with a representative of the OSCE Mission to the country indicated that they had made this choice because, in their view, civil society organizations were sufficiently developed in the country that could monitor the fairness of the judicial process, and that the OSCE field mission had concluded that it should only become involved in relatively high profile cases.
The OSCE has also undertaken trial observation of trials countries outside the Balkans, most notably in Uzbekistan and Azerbaijan.
The issue of the use of local staff in trial observation is a complex one. Local staff may have a great contribution to make because of their knowledge of local language, culture and legal traditions. However, in some situations, there may not be competent local staff in terms of knowledge of international standards, and if they exist, engaging them may drain away, through payment of higher salaries, scarce local legal personnel who would otherwise work as judges, prosecutors or defence counsel. Similarly, local staff in situations that are charged with ethnic tensions may carry with them their own bias, and may also be in danger of reprisals for accurately reporting irregular judicial proceeding or evident cases of judicial corruption. While it has been reported that in Bosnia and Herzegovina use of local staff worked relatively well, anecdotal evidence indicates that in Kosovo their role was sometimes found to be problematic because of bias. Although the UN has no trial observation programme at the present time in Afghanistan, there had been some sporadic attempts to engage in trial observation by local staff that were subsequently discontinued because of a fear of reprisals.[15] Hence, local conditions need to be closely evaluated when designing programmes in the field.
According to anecdotal reports, DPKO, which has significant trial observation programmes in a number of its field missions, is reticent to see OHCHR engaging in trial observation and more broadly activities relating to the reform of the criminal justice sector. It has been reported that some in DPKO are of the view that they have the resources, expertise and competent staff to undertake this type of activity, and that OHCHR, broadly speaking, does not. This has apparently created tensions and problems of coordination where both OHCHR and DPKO have field presences.
C. Trial observation in the context of a the Security Council resolution unrelated to the establishment of a UN field presence
In the trial of those accused of the Lockerbie bombings, the Security Council included a reference to trial monitoring in its resolution 1192 (1998).[16] The resolution in paragraph 6, “Invites the Secretary-General to nominate international observers to attend the trial”. In a letter dated 25 April 2000 addressed to the Security Council, the Secretary-General indicated “the names of the international observers nominated by me pursuant to paragraph 6 of Security Council resolution 1192 (1998) to attend the trail of the two persons charged with the bombing of Pan Am flight 103 before the Scottish Court sitting in the Netherlands. The persons named were Mrs. Hairat Balogun (Organization of African Unity and the Non-Aligned Movement); Mr. M.H. Beerenboom (European Commission); Dr. Nabil Elaraby (League of Arab States) and Dr. Hans Koechler and Mr. Robert Thabit (International Progress Organization).[17]
Subsequently it became an issue whether the trial observers were “UN monitors” or monitors speaking for themselves or their own organizations because of a report and statements made on the Lockerbie trial made by Dr. Hans Koechler of the International Progress Organization. Dr. Koechler had characterized the dismissal of the Lockerbie bomber’s appeal as “a spectacular miscarriage of justice”.[18] This led to an unusual exchange of correspondence. Mr. Hans Corell, Legal Counsel of the United Nations at the time, wrote to the parents of a victim and stated that:
“It should be clarified that international observers nominated by the Secretary-General pursuant to Security Council resolution 1192 (1998) did not represent the United Nations at the Lockerbie trial and were not required to produce and submit to the United Nations their observations. These observers represented their own organizations which were responsible for their expenses.
It follows from the foregoing that the United Nations cannot be associated with the observations made by these observers, as wrongly implied by some reports, and the United Nations Secretariat is not in a position to comment on these observations. It is worthy of note in this regard that when Dr. Koechler’s remarks on the trial were received by the Untited Nations they were forwarded to the Registrar of the Scottish Court in the Netherlands under a cover letter indicating that these remarks constitute his personal views on the trial.”
The International Progress Organization issued a note agreeing in part and disagreeing in part with the statement of the Legal Counsel of the United Nations. While the International Progress Organization agreed that the report of Dr. Koechler was not a report of the United Nations, it disputed that he was not a UN trial observer. It noted that Dr. Koechler, “like the other UN-nominated observers, was not merely offered an ‘opportunity to observe the appeal hearings’ … but was (a) ‘nominated’ by the UN Secretary-General after the International Progress organization had been ‘invited’ by the UN Under-Secretary-General for Legal Affairs to inform him of the names of representatives ‘who could be nominated to attend the trial as international observers,’ and (b) was considered by the Scottish Court in the Netherlands, on the basis of the official communications received from the United Nations, as ‘UN Observer’”. It also noted that the Scottish Court in the Netherlands issued a pass to Dr. Koechler, which read as follows “Hans Koechler – International Progress Organization – UN Observer”[19]
Trial monitoring in the Lockerbie trial observation has some relevance to OHCHR’s choices about how it conducts this activity. While the circumstances concerning trial monitoring in the Lockerbie were no doubt unusual, this event does highlight the potential problems that may result if trial observers are nominated by the United Nations, but not working directly under its authority. It can, for example, lead to confusion as to whether they are agents of the United Nations and whether they are speaking on behalf of the United Nations. Presumably this confusion could also be present if the United Nations undertook to trial monitoring jointly with another organization or organizations and the agreement on the modalities of collaboration were not sufficiently clear.
The case above is mentioned because it relates to an issue that actually came up recently in the framework of OHCHR’s activities. The Office requested the Government Uzbekistan to monitor a trial in connection with events in Andijan, Uzbekistan in 2005. The Government indicated that it was willing to accede to the request, subject to certain conditions, one of which was that the trial monitor should be an employee of the United Nations. This request was interesting as it could be interpreted that Uzbekistan did not want the Office to nominate a person from an organization that was legally distinct from the United Nations, and which could cause confusion about the person’s status. Although ultimately OHCHR did not monitor the trial in Uzbekistan because of a number of other limitations imposed by the Government, including the refusal to authorize her representative to have access to the case file and places of detention, the High Commissioner did issue a statement critical of a series of trials that took place in connection with the events in Andijan whereby she urged respect for fair trial standards. [20]
Interestingly, the Security Council seems as least as likely as OHCHR to be solicited as the appropriate UN organ to undertake trial observation of high profile or political trials. For example, Reporters Without Borders called upon the Security Council in December 2005 to send a legal observation mission to Ethiopia to monitor the judicial proceedings in which 131 detained government opponents and critics, including 13 journalist, are to be tried in Addis Ababa for allegedly fomenting insurrection.[21]
Preliminary Conclusions and Recommendations
1. OHCHR’s has expertise in trial observation both at headquarters and in the field, but this expertise is diffuse, not well documented and not well organized. There should be an effort to establish a roster of individuals within the organization who have experience with trial observation so that they can exchange experiences, their efforts can be better documented, and a ready pool of experienced persons could be drawn upon in the event OHCHR was asked to engage in trial observation in one or more high profile cases. A meeting on this subject could be organized.
2. Both OSCE and DPKO appear to have more experience in trial observation globally than OHCHR, although there may be individual country situations where this is not true. Efforts should be made to have more interaction with OSCE and DPKO not only at the level of the field, but also at a headquarters level to improve the knowledge base of OHCHR in this area. It would be useful to organize meetings for this purpose.
3. Tension between OHCHR and DPKO exists on the subject of trial observation, with DPKO informally taking the view that OHCHR does not have adequate capacity in terms of trained legal professionals to undertake this type of work. These tensions should be addressed and resolved through a better coordination of efforts. It should be acknowledged that DPKO has far more resources than OHCHR to undertake this type of work in peace operation missions. OHCHR should also take under review informal criticism that its staff may not have the same level of legal expertise as DPKO, and take steps to address this situation if this criticism is shown to be justified. Programmes by DPKO on justice sector reform do appear to be far more comprehensive in approach and to address issues that are not commonly thought of as human rights issues. CBB should take the lead in discussions with DPKO, with the Rule of Law and Democracy Unit playing a supporting role. Ultimately, OHCHR may need to consider how it approaches this issue at an organizational level and in terms of minimum qualifications of staff that undertake this type of work.
4 Trial observation undertaken by OHCHR should be undertaken by OHCHR staff or consultants working under the authority of OHCHR. In principle, NGOs should not be authorized to undertake trial observation on behalf of OHCHR, although this does not mean that OHCHR should not take into account trial observation experiences by NGOs when assessing the fairness of a particular trial or more broadly the state of implementation of judicial reform in a given country.
ANNEX: BASIC INFORMATION ABOUT TRIAL OBSERVATION
A. The choice of trials and strategic objectives
Trial monitoring normally concerns criminal trials, and frequently criminal trials that involve “political offences” or that have a “political character”. Nevertheless, there has been trial monitoring of civil cases, for example, in the context of a defamation proceeding against a prominent judge or political opponent. Trial monitoring also has taken place where the proceeding appears designed to discredit certain judges or lawyers with a view to undermine the independence of the judiciary or to intimidate defence counsel. The key goals of trial monitoring[22] can be summarized as follows:
· to make known to the court, the authorities of the country and to the general public the interest in and concern for the trial in question;
· to encourage the court to give the accused a fair trial. NGOs with experience in this field have concluded that a trial monitor’s presence often changes the atmosphere in the courtroom and facilitates the defence attorney’s role by making the court more cognizant of the defence’s arguments, encouraging defence counsel and the defendant to be more forceful in contesting the prosecution’s claims, in attracting media and international attention to the trial;
· to obtain more information about the conduct of the trial, the nature of the case against the accused, and the legislation and circumstances under which the person is being tried;
· to promptly prepare a report at the conclusion of the proceedings for the organization for which the trial observer works, with conclusions on the fairness of the trial observed, with a view that the publicity that this report receives may serve to enhance a defendant’s chances of having his or her case fairly reviewed on appeal;
· to inform the government and the general public of possible irregularities in the conduct of the trial, including conformity with domestic criminal procedure and law, international standards and customary international law, with a view to prompting the government to take action to bring criminal trials into conformity with international human rights standards regarding fair trial.
B. Basic fair trial criteria
In order to avoid possible challenges to the legal nature of the standards employed by a trial monitor, the standards against which a trial is to be assessed in terms of fairness should be those norms whose legal origin is considered beyond question.[23] These include:
· the laws of the country that are applicable to the trial;
· the human rights treaties – regional and international - to which the State is a party, and
· norms of customary international law
In interpreting the provisions of international and regional human rights treaties, there exist a number of resources that may be useful to a trial monitor when additional guidance is needed to understand the application of the text of an international or regional instrument.[24]
Below is a list of summary of the most basic fair trial criteria. More comprehensive information on fair trial criteria, and also extensive commentary on how the below provisions have been previously interpreted, is available in a number of publications specifically devoted to trial monitoring in particular, as well as to the subject of fair trial more generally.
1) Pre-trial rights
· The prohibition of arbitrary arrest and detention
· The right to know the reasons for arrest
· The right to legal counsel
· The right to a prompt appearance before a judge to challenge the lawfulness of arrest and detention
· The prohibition of torture and the right to humane conditions during pre-trial detention
· The prohibition of incommunicado detention
2) The trial
· Equal access to, and equality before, the courts
· The right to a fair hearing
· The right to a public hearing
· The right to a competent, independent and impartial tribunal established by law
· The right to the presumption of innocence
· The right to prompt notice of the nature and cause of criminal charges
· The right to adequate time and facilities for the preparation of a defence
· The right to a trial without undue delay
· The right to defend oneself in person or through legal counsel
· The right to examine witnesses
· The right to an interpreter
· The right not to incriminate oneself
· The prohibition of retroactive application of criminal laws
· The prohibition of double jeopardy
3) Post-trial rights
· The right to appeal
· The right to compensation for a miscarriage of justice
C. The mechanics of trial observation
There are multiple issues involved in trial observation. These include the following:
· Selection of the trial observer
· Briefing of the trial observer and formalizing the terms of reference for the mission
· Informing the Government and request for conditions that would allow the trial monitor to freely perform his or her functions
· Linguistic knowledge/need for interpreters and translators
· Contacts and interviews during the mission
· Travel and housing arrangements/required visas
· Public statements before, during and after the mission
· Seating in the courtroom: notes
· The report of the trial monitor
Going through these issues one by one briefly, the issue of the selection of the trial observer is crucial. The success of the mission will depend on the trial monitor’s independence, impartiality and qualifications. Other relevant factors would include knowledge of applicable domestic law and international human rights standards, familiarity with the case and language skills. In certain cases, a trial monitor’s nationality, ethnicity or gender could be considered a factor in having the person perceived as impartial. Several international human rights NGOs, including Amnesty International, have rules against using local lawyers as trial observers because this may give rise to claims of bias. Although there is no generalized practice on whether it is better to send a staff member of the organization doing the monitoring or a well known lawyer as a consultant, it some contexts the fact that a consultant may have an international reputation may give rise to a perception of bias because the person’s reputation is based on previous activities that are well known.
Evidently, the trial monitor should be briefed on domestic law and the situation concerning the trial before departure and should have clear terms of reference for the mission. Similarly, the Government concerned should be informed of the mission, the terms of reference and the Government’s cooperation with the trial observer should be requested, including issuance of an appropriate visa.
Ideally, the trial monitor will speak and read fluently the language that will be used in the trial that he or she is sent to observe. However, in many cases this is not possible and the trial monitor will need the assistance of an interpreter to provide a soft voice translation of the proceedings as well as in meeting with the judges of the case, the prosecutor, defence counsel and the defendants. The service of the same person should also be used to have translations of relevant laws and documents in the court file or presented and used prior to, during and after the trial. It may be that it is preferable to use an interpreter who is from outside the country to avoid the potential for harassment or reprisals by the government.
Regarding travel and housing, if assistance is given in-country, it should be from a person or entity not involved in the proceedings. The trial monitor should also not stay in a hotel that is being used or where persons associated with the trial are staying to preserve his or her impartiality.
In terms of public statements, while practice is not uniform, most of the sources consulted indicated that the trial monitor should be free to inform the press about his or her presence, the purpose of the mission and that a report will be drawn up following the end of the trial observation for OHCHR. Normally, the statement would indicate that no further statements would be made until the conclusion of the trial and the submission of the report to the organization for which he or she works. At that conclusion of the trial, the trial monitor would promptly draft a report and submit it to OHCHR, which then decide whether to issue a statement of the trial observation. Only exceptional circumstances, such as the breakdown of the judicial process would merit a comment on the merits during the trial itself, and this only in after consultation with headquarters.
The trial monitor should, if possible, meet with the presiding judge, the prosecutor and the defence counsel before the proceedings begin. If it was helpful to clarify the trial monitor’s presence, a neutral party such as the presiding judge should indicate that the trial monitor is there so the participants and the public so that note can be taken of the trial monitor’s presence. The trial monitor should also, if possible, interview the defendant, in full confidentiality, in order to observe his or her physical and mental conditions and the circumstances of his or her detention, including the circumstances of any interrogations that have taken place. If there are more than one defendant, they should be interviewed individually and not as a group. The trial monitor should also review all documents in the court file, including those that are presented at trial. The trial monitor should try to meet with other persons, including government officials, who may have knowledge of the background of the case. Articles by journalists prior to the trial and during the trial should also be collected as background information.
When observing the trial, it is best not to sit in the section with the public but to have a neutral position in the courtroom apart from the public as well as the prosecutor and defence counsel. The trial monitor should take extensive notes to have his or her record of the proceedings. Some sources have indicated that the trial monitor should take notes in a type of short hand that only he or she can understand, in the event that the Government attempts to review the notes. Normally the report should be prepared promptly, within a week or so after the trial, but after the trial monitor has left the country. All sources consulted that promptness in drafting up the report is vital, in order to maximize the effect of an public statement made by the sending organization.
One issue that is not uniformly answered is whether the Government should be allowed to see a copy of the report and have the opportunity to comment and respond before it is made public, or in the alternative, before OHCHR makes a statement. If the report is sent to the Government, a precise time limit should be indicated beyond which OHCHR should feel free to issue a statement and/or the report. Although some may question issuing a statement and/or report at the conclusion of the proceedings, the statement and/or report may help to ensure that the defendant’s appeal receives the attention it deserves on appeal, including any irregularities noted by the trial monitor, and that the Government takes steps to bring its trial proceedings into accordance with regional and international standards.
As to the structure of the report, the following non-exhaustive list includes key information that should be included in a report on trial monitoring:
· The terms of reference for the trial observation
· The background of the case
· The facts of the case as revealed at trial and by independent fact-finding, with particular emphasis on the prosecution and defense evidence
· The charges, the applicable laws, pre-trial procedures, the trial process, the judgement of the court and any subsequent proceedings
· The mental and physical condition of the defendant and the conditions of confinement
· An evaluation of the fairness of the proceedings, applicable laws and conformity of the trial with national, regional and international law
· A conclusion
Additionally, the following material should, if possible, be gathered as supplementary information or reference material:
· Copies of relevant rules of procedure, laws and court decisions
· Copies of charges, transcripts and the court’s judgement
· A description of the trial monitor’s methodology, as well as a list of material studies and persons interviewed
· Sensitive information which should be omitted from the published report
· Copies of newspaper articles referring to the trial and/or the trial monitor’s presence, with the names of the media sources and the dates of publication
· Additional information not strictly within the trial monitor’s missions such as information about other prisoners, other trials and recent laws that are relevant
· Practical suggestions and observation that may be useful for future trial monitoring missions.
[1] In addition to the International Covenant on Civil and Political Rights, the other international human rights instrument most relevant in this context would be the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Nevertheless, other international human rights instruments could be relevant such, inter alia, the Convention of the Rights of the Child which has provisions on fair trial.
[2] Regional international instruments that may be relevant would include the European Convention for the Protection of Human Rights and Fundamental Freedoms; the American Convention on Human Rights; and the African Charter on Human and People’s Rights.
[3] The provisions of the Universal Declaration of Human Rights are normally considered as part of customary international law and may be of paramount importance if a state has not ratified the ICCPR, the Torture Convention or a regional international human rights instrument. The most relevant articles of the UDHR to the right to a fair trial are articles 5, 9, 10 and 11.
[4] Training Manual on Human Rights Monitoring, Chapter XIII: “Trial Observation and Monitoring the Administration of Justice”, Professional Training No. 7, OHCHR, Geneva, 2001
[5] Rule-of-law tools for post-conflict states: Monitoring Legal Systems, OHCHR, Geneva, 2006; Rule-of-law tools for post-conflict states: Mapping the justice sector, OHCHR, Geneva, 2006.
[6] What Is a Fair Trial? A Basic Guide to Legal Standards and Practice, Lawyers Committee for Human Rights, March 2000, New York; Fair Trials Manual, Amnesty International, 1998, London; Trial Observation Manual, International Commission of Jurists, 2002, Geneva; Trial Monitoring Manual, OSCE Mission to Bosnia and Herzegovina, Sarajevo, 2004; Trial Observation Manual: Guidelines for ICJ Observers to Trials – The Middle East Programme, The Swedish Section of the ICJ, 2003, Stockholm; Manual on Human Rights Monitoring, Chapter 8: “Trial Observation”, Norwegian Institute of Human Rights, Oslo, 1996.
[7] UN field presences is given the broadest possible interpretation here and includes, for example, OHCHR field presences, UN missions established by Security Council resolution and UNDP. Trial observation programmes have been undertaken by field presences with the support of OHCHR, either directly or indirectly.
[8] For example, in 1999 United Nations High Commissioner Mary Robinson named Bill Butler as her special envoy to monitor the trial of the Kurdish leader Ocalan and an internal report was prepared. Similarly, United Nations High Commissioner Louise Arbour requested to monitor trials in Uzbekistan in connection with the prosecution of persons alleged to be involved in the events in Andijan, Uzbekistan. These trials attracted international attention in 2005, but ultimately did not do so because the Government of Uzbekistan placed restrictions on the scope
of activities of an OHCHR trial observer.
[9] This trial observation took place on appeal in 1998 after the defendant Mr. Cheikh Saad-Bouh Kamara had been arrested, tried and imprisoned for having founded and presided over an association for the victims of slavery that the Government of Mauritania had refused to legally register. Mr. Kamara was arrested while he was a member of the UN Trust Fund for Victims of Contemporary Forms of Slavery and shortly before its next session. On the basis of a proposal of the High Commissioner, the Secretary-General named an official of OHCHR, rather than OLA or DPA, as his trial observer. A confidential report of the Secretary-General was prepared by OHCHR’s trial observer in cooperation with OLA. Mr. Kamara was subsequently pardoned by the President of Mauritania.
[10] See e.g. Report of the Secretary-General, Role and achievements of the Office of the United Nations High Commissioner for Human Rights in assisting the Government and people of Cambodia in the promotion and protection of Human Rights, 6 August 2002 (A/57/277), paras 10-11; Report of the Secretary-General on the situation in Abkhazia, Georgia, 14 July 2004 (S/2004/570), para. 25; “Feature: Trial monitoring builds transparency in Montenegro”, OSCE Mission to Serbia and Montenegro, 22 April 2003) (http://www.osce.org)(“the/ (“The trial monitoring project in Montenegro relies on the co-operation of the OSCE with five international organizations : Office of the United Nations High Commissioner for Human Rights”; similar OSCE projects exist in Croatia and Kosovo); “Christopher Harland: Monitoring Genocide Trials in Rwanda”, (http://www.dfait-maeci.gc.ca/) (last updated 03.03.05) (description of the trial monitoring programme of the United Nations Human Rights Field Operation in Rwanda and its work with OHCHR); Lettre date du 24 juin 2005, addressee au Président du Conseil de sécurité par le Secrétaire general, Annex II, Report of the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, para. 29, 26 May 2005 (S/2005/458)(refers to trial observation activities undertaken by UN officials and NGOs); interviews with various UN colleagues.
[11] See e.g. “Kosovo: Review of the criminal justice system: 1999-2005: Reforms and residual concerns, March 2006”, OSCE/UNMIK (http://www.osce.org/). These reports by the Kosovo mission were among the most comprehensive review of actual field experiences relating to the subject of trial observation, and more broadly legal system monitoring.
[12] Regular reports on developments can be found on the website of the United Nations Mission of Liberia’s website that describes the human rights component of its rule of law programmes (www.unmil.org/content.asp?cat=humanrights)
[13] It is interesting to note that the thematic reports issued by the JSAP were rather broad based and covered subjects that covered human rights issues, as well as subjects less commonly considered human rights issues. These thematic reports included an assessment of courts for minor offences (thematic report 1); inspection of the municipal public prosecutor’s office in Livno, Canton (thematic report II); arrest warrants, amnesty and trials in absentia (thematic report III); interim report on delays and detention ; case study in economic reform – inspection of the registry for companies and public institutions in Bihac (thematic report IV); a report on the implementation of amnesty legislation; enforcement: execution of court judgements in civil cases (thematic report V); expert evidence: the use and misuse of court experts (thematic report VI); JSAP and the judicial review process in Bosnia and Herzegovina (thematic report VII): prosecuting corruption: a study of the weakness of the criminal justice system in Bosnia and Herzegovina (thematic report VIII); and political influence: the independence of the judiciary in Bosnia and Herzegovina (thematic report IX).
[14] See generally: website of the OSCE Mission in Bosnia and Herzegovina (www.oscebih.org).
[15] Discussion with Charles Briefel, Senior Rule of Law Officer, Rule of Law Unit, UNAMA. Mr. Briefel also supervised the trial observation programme of OSCE in Bosnia and Herzegovina from 2003-2005.
[16] Adopted by the Security Council at its 3920th meeting, 27 August 1998.
[17] Letter dated 25 April 2000 from the Secretary-General addressed to the President of the Security Council, adopted 26 April 2000 (S/2000/349)
[18] “UN monitor decries Lockerbie judgment”, BBC News, 14 March 2002 (http://news.bbc.co.uk).
[19] “Noted concerning the status of Prof. Hans Koechler as international observer at the Lockerbie trial in the Netherlands”, issued by the International Progress Organization, Vienna, 2 June 2002.
[20] “High Commissioner for Human Rights Urges Uzbekistan to Respect Fair Trial Standards”, Press Release, 23 December 2005.
[21] “Reporters Without Borders Calls for UN to monitor court proceedings”, Reporters Without Borders, 21 December 2005 (www.ethiomedia.com)
[22] These goals draw largely on goals stated in the publications in the bibliography, see in particular What Is a Fair Trial? A Basic Guide to Legal Standards and Practice, Lawyers Committee for Human Rights, March 2000, New York, pp. 1-2; International Commission of Jurists, Trial Observation Manual, Geneva, 2002, pp. 3-4; Training Manual on Human Rights Monitoring, Chapter XIII: “Trial Observation and Monitoring the Administration of Justice”, Professional Training No. 7, OHCHR, 2001, Geneva, pp. 285-286.
[23] This would normally exclude non-binding documents that may nevertheless assist the trial monitor in evaluating the conduct of trial proceedings and their conformity with applicable domestic laws, regional and international human rights instruments. For a partial listing, see e.g. Basic Principles for the Treatment of Prisoners, General Assembly resolution 45/111, 14 December 1990; Standard Minimum Rules for the Treatment of Prisoners, adopted 30 August 1955, by the First UN Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc. A/CONF/611, Annex I, Economic and Social Council resolution 663 C (XXIV), 31 July 1957 and resolution 2076 (LXII), 13 May 1977; Body of Principles for the Protection of All Persons under Any form of Detention or Imprisonment, General Assembly resolution 43/173, 9 December 1988; Basic Principles on the Role of Lawyers, adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August- 7 September 1990; Basic Principles on the Independence of the Judiciary, General Assembly resolution 40/32, 29 November 1985 and resolution 40/146, 13 December 1985; Guidelines for the Role of Prosecutors, adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August- 7 September 1990; Code of Conduct for Law Enforcement Official, General Assembly resolution 34/169, 17 December 1979.
[24] See e.g. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, OHCHR, Geneva, 2003; Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary (2nd edition), N.P. Engel, Kehel, Germany, 2005; Sarah Joseph et al, The International Commentary on Civil and Political Rights: Cases, Materials and Commentary (2nd edition), Oxford University Press, 2005; Clare Ovey and Robin White, Jacobs and White: The European Convention on Human Rights (4th edition), Oxford University Press, 2006; Philip Leach, Taking a Case to the European Court of Human Rights (2nd edition), Oxford University Press, 2005; Jo Pasqualucci, The practice and procedure of the Inter-American Court of Human Rights, Cambridge University Press, 2003.
The High Commissioner has asked the Rule of Law and Democracy Unit to take the lead in preparing a policy paper on trial observation. It was understood that this policy paper would be developed in consultation with all colleagues in the Office. Please find attached a draft policy paper for your review. If you have any comments, observations or suggestions, please forward them to me no later than 16 June 2006. After your comments are received, an informal meeting will be organized in Geneva to discuss the draft policy paper with a view to revising it as appropriate.
Draft Policy Paper on Trial Observation
Prepared by Robert Husbands, Rule of Law and Democracy Unit, OHCHR (17 May 2006)
Introduction
This draft policy paper sets out information about experiences of the United Nations, and OHCHR in particular, with trial observation. It also makes reference to the work of the OSCE, which has considerable experience in this area. Preliminary conclusions and recommendations are also enclosed.
A significant number of OHCHR staff contacted in the preparation of this paper had little knowledge of the subject of trial observation. A lack of documentation concerning trial observation in general was identified as a problem within OHCHR institutionally in the process of researching this paper. Therefore, an annex to this paper is included, which provides basic information relating to the goals of trial observation, basic fair trial criteria, and processes that have been identified by OHCHR and prominent NGOs about how trial observation should be done.
I. The United Nations and trial observation
A. Human rights standards and relevant OHCHR publications
The right to a fair trial is designed to protect individuals from unlawful and arbitrary deprivation of their basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. These rights are guaranteed, inter alia, by Article 14 of the International Covenant on Civil and Political Rights (ICCPR), and as such falls within the mandate of the High Commissioner to promote and protect human rights.
Trial monitoring is undertaken to evaluate the fairness of trials and their compliance with the standards set out in the laws of the State concerned, the ICCPR and other international[1] and regional human rights instruments[2], and customary international law[3]. OHCHR’s Training Manual on Human Rights Monitoring has a chapter entitled “Trial Observation and Monitoring the Administration of Justice”, that is devoted entirely to this subject.[4] More recently, two publications of OHCHR, Monitoring Legal Systems and Mapping the Justice Sector[5], address issues relating to trial monitoring in post-conflict states. OHC In addition to these OHCHR publications, a number of books and articles on trial monitoring have been published by other human rights organizations, most prominently by international and national NGOs.[6] These publications diverge in the level of detail, but rarely on issues of substances. They normally include the rationale for trial monitoring; the relevant standards to be observed, usually in a checklist form with a separate commentary on interpretation of individual criteria; and practical guidance on how monitoring should be done.
B. Trial observation by OHCHR, UN field presences and the OSCE[7]
The United Nations has periodically engaged in trial monitoring, and it has been considered by the United Nations, other international organizations, States and NGOs as a useful tool to encourage States to respect international and regional fair trial standards in high-profile trials, frequently of a political character, and more recently to assist in the evaluation of justice sector reform. Trial observation by the United Nations does not appear to be very well documented in official reports, even though such programmes are exist or have existed, in some cases on a fairly sizeable scale.
Official documentation as well as informal published documentation relating to the trial monitoring experiences of OHCHR and UN field presences is limited. A lack of documentation is sometimes attributable to the fact that frequently the reports of monitoring are not made public.
Occasionally, OHCHR has monitored or requested to monitor high profile cases as well, although this appears to be a relatively rare occurrence.[8] On one occasion, an OHCHR official was designed by the Secretary-General to undertake a mission of trial observation concerning the appeal of a member of the United Nation Trust Fund for Victims of Contemporary Forms of Slavery who had already been arrested, tried and imprisoned. The trial observation mission was predicated on the position of the United Nations that the expert’s arrest, trial and imprisonment was inconsistent with the immunity he should be accorded to freely carry out his functions as a member of this UN body.[9] Trial observation frequently appears to not only have the purpose of monitoring sensitive trials at the national level to detect interference with the independence of the judiciary and compliance with international standards, but also a broader goal of assessing the implementation of judicial reforms with a view to detecting areas where further attention may be warranted in providing technical assistance during an ongoing judicial reform process.
Trial monitoring by the UN has occurred with some regularity in, for example, Bosnia and Herzegovina, Cambodia, Columbia, Democratic Republic of the Congo, Georgia, Haiti, Kosovo, Liberia, Rwanda, Serbia and Montenegro, and Timor Leste. [10] Details in official reports are somewhat summary, when mentioned at all. For example, in a report of the Secretary-General on the role and achievements of OHCHR in assisting the Government and people of Cambodia in the promotion and protection of human rights, there is only a brief mention of trial monitoring, which states: “The Office observed trials on a selective basis. In certain cases, the Office facilitated medical, legal and other forms of assistance to victims.” Related information was reported, but again only in summary form:
“The Office continued to monitor conditions of detention and imprisonment and the enforcement of court orders. Shortage of food and inadequate medical assistance to inmates were of continuing concern. Many reports were received of cases where suspects were not legally represented in court because of the shortage of lawyers in Cambodia, or were tried in absentia due to the lack of transportation to take them from the detention centres to the court.”
Similarly, in a report to the Security Council on the situation in Georgia, it was
reported briefly that “The United Nations Human Rights Office in Sukhumi …continued to monitor court trials and places of pre-trial detention.”
In Kosovo, there is an active legal system monitoring programme that is carried out within the framework of the United Nations Mission in Kosovo (UNMIK), which includes trial observation. The programme is administered by the OSCE, which has extensive trial observation programmes in a number of the countries in the Balkans. It has been reported that there are five international staff and five national staff, who, inter alia, undertake trial observation on a regular basis, and publish a report every six months on key subjects of concern and trends in the evolution of the criminal justice system, with some reports focusing on thematic areas.[11] This periodic reporting was designed to alert UNMIK and donors about the situation within a realistic time frame and enable them to make timely decisions on changes in the programme.
It has been reported that the legal monitoring programme undertaken in Kosovo has served as a model for programmes run by the Department of Peace Keeping Operations (DPKO) in Liberia and Haiti. Liberia has an extensive programme with approximately 50 rule of law personnel, a number of whom engage in trial observation.[12]
In Bosnia and Herzegovina, the UN field mission engaged in a comprehensive approach to trial observation with a view to assessing the status of the judiciary and the need for judicial reform. The Judicial System Assessment Programme (JSAP) was set up by the United Nations Mission in Bosnia and Herzegovina in late 1998, under a Security Council resolution, to “monitor and assess” the court system as part of the overall programme of judicial reform coordinated by the Office of the High Representative. JSAP considered all aspects of the judicial system, including civil and administrative cases and the institutional framework and political environment in which the judiciary operates, from a rule of law perspective that was not limited to human rights issues.[13] The JSAP programme ended in November 2002, and subsequently the OSCE took the lead role in legal system monitoring. A trial observation team that consists of approximately 35 local staff and international staff regularly engages in trial observation in every district of the country, and concentrates on monitoring the domestic prosecution of war crimes before the cantonal courts and on the implementation of the criminal procedure code.[14] The coordinator of OSCE field mission in Bosnia and Herzegovina indicated at a meeting with member States of the OSCE in May 2006 that the trial observation programme was the key element of the field mission’s programme to assist in the implementation of judicial reform in the country.
Interestingly, the OSCE approach is not the same in all of the countries of the Balkans where it has field missions that engage in trial observation. Although in Serbia and Montenegro, the OSCE does engage in limited trial observation of cases involving war crimes and organized crime, the vast majority of its resources are focused on providing technical assistance. Discussions with a representative of the OSCE Mission to the country indicated that they had made this choice because, in their view, civil society organizations were sufficiently developed in the country that could monitor the fairness of the judicial process, and that the OSCE field mission had concluded that it should only become involved in relatively high profile cases.
The OSCE has also undertaken trial observation of trials countries outside the Balkans, most notably in Uzbekistan and Azerbaijan.
The issue of the use of local staff in trial observation is a complex one. Local staff may have a great contribution to make because of their knowledge of local language, culture and legal traditions. However, in some situations, there may not be competent local staff in terms of knowledge of international standards, and if they exist, engaging them may drain away, through payment of higher salaries, scarce local legal personnel who would otherwise work as judges, prosecutors or defence counsel. Similarly, local staff in situations that are charged with ethnic tensions may carry with them their own bias, and may also be in danger of reprisals for accurately reporting irregular judicial proceeding or evident cases of judicial corruption. While it has been reported that in Bosnia and Herzegovina use of local staff worked relatively well, anecdotal evidence indicates that in Kosovo their role was sometimes found to be problematic because of bias. Although the UN has no trial observation programme at the present time in Afghanistan, there had been some sporadic attempts to engage in trial observation by local staff that were subsequently discontinued because of a fear of reprisals.[15] Hence, local conditions need to be closely evaluated when designing programmes in the field.
According to anecdotal reports, DPKO, which has significant trial observation programmes in a number of its field missions, is reticent to see OHCHR engaging in trial observation and more broadly activities relating to the reform of the criminal justice sector. It has been reported that some in DPKO are of the view that they have the resources, expertise and competent staff to undertake this type of activity, and that OHCHR, broadly speaking, does not. This has apparently created tensions and problems of coordination where both OHCHR and DPKO have field presences.
C. Trial observation in the context of a the Security Council resolution unrelated to the establishment of a UN field presence
In the trial of those accused of the Lockerbie bombings, the Security Council included a reference to trial monitoring in its resolution 1192 (1998).[16] The resolution in paragraph 6, “Invites the Secretary-General to nominate international observers to attend the trial”. In a letter dated 25 April 2000 addressed to the Security Council, the Secretary-General indicated “the names of the international observers nominated by me pursuant to paragraph 6 of Security Council resolution 1192 (1998) to attend the trail of the two persons charged with the bombing of Pan Am flight 103 before the Scottish Court sitting in the Netherlands. The persons named were Mrs. Hairat Balogun (Organization of African Unity and the Non-Aligned Movement); Mr. M.H. Beerenboom (European Commission); Dr. Nabil Elaraby (League of Arab States) and Dr. Hans Koechler and Mr. Robert Thabit (International Progress Organization).[17]
Subsequently it became an issue whether the trial observers were “UN monitors” or monitors speaking for themselves or their own organizations because of a report and statements made on the Lockerbie trial made by Dr. Hans Koechler of the International Progress Organization. Dr. Koechler had characterized the dismissal of the Lockerbie bomber’s appeal as “a spectacular miscarriage of justice”.[18] This led to an unusual exchange of correspondence. Mr. Hans Corell, Legal Counsel of the United Nations at the time, wrote to the parents of a victim and stated that:
“It should be clarified that international observers nominated by the Secretary-General pursuant to Security Council resolution 1192 (1998) did not represent the United Nations at the Lockerbie trial and were not required to produce and submit to the United Nations their observations. These observers represented their own organizations which were responsible for their expenses.
It follows from the foregoing that the United Nations cannot be associated with the observations made by these observers, as wrongly implied by some reports, and the United Nations Secretariat is not in a position to comment on these observations. It is worthy of note in this regard that when Dr. Koechler’s remarks on the trial were received by the Untited Nations they were forwarded to the Registrar of the Scottish Court in the Netherlands under a cover letter indicating that these remarks constitute his personal views on the trial.”
The International Progress Organization issued a note agreeing in part and disagreeing in part with the statement of the Legal Counsel of the United Nations. While the International Progress Organization agreed that the report of Dr. Koechler was not a report of the United Nations, it disputed that he was not a UN trial observer. It noted that Dr. Koechler, “like the other UN-nominated observers, was not merely offered an ‘opportunity to observe the appeal hearings’ … but was (a) ‘nominated’ by the UN Secretary-General after the International Progress organization had been ‘invited’ by the UN Under-Secretary-General for Legal Affairs to inform him of the names of representatives ‘who could be nominated to attend the trial as international observers,’ and (b) was considered by the Scottish Court in the Netherlands, on the basis of the official communications received from the United Nations, as ‘UN Observer’”. It also noted that the Scottish Court in the Netherlands issued a pass to Dr. Koechler, which read as follows “Hans Koechler – International Progress Organization – UN Observer”[19]
Trial monitoring in the Lockerbie trial observation has some relevance to OHCHR’s choices about how it conducts this activity. While the circumstances concerning trial monitoring in the Lockerbie were no doubt unusual, this event does highlight the potential problems that may result if trial observers are nominated by the United Nations, but not working directly under its authority. It can, for example, lead to confusion as to whether they are agents of the United Nations and whether they are speaking on behalf of the United Nations. Presumably this confusion could also be present if the United Nations undertook to trial monitoring jointly with another organization or organizations and the agreement on the modalities of collaboration were not sufficiently clear.
The case above is mentioned because it relates to an issue that actually came up recently in the framework of OHCHR’s activities. The Office requested the Government Uzbekistan to monitor a trial in connection with events in Andijan, Uzbekistan in 2005. The Government indicated that it was willing to accede to the request, subject to certain conditions, one of which was that the trial monitor should be an employee of the United Nations. This request was interesting as it could be interpreted that Uzbekistan did not want the Office to nominate a person from an organization that was legally distinct from the United Nations, and which could cause confusion about the person’s status. Although ultimately OHCHR did not monitor the trial in Uzbekistan because of a number of other limitations imposed by the Government, including the refusal to authorize her representative to have access to the case file and places of detention, the High Commissioner did issue a statement critical of a series of trials that took place in connection with the events in Andijan whereby she urged respect for fair trial standards. [20]
Interestingly, the Security Council seems as least as likely as OHCHR to be solicited as the appropriate UN organ to undertake trial observation of high profile or political trials. For example, Reporters Without Borders called upon the Security Council in December 2005 to send a legal observation mission to Ethiopia to monitor the judicial proceedings in which 131 detained government opponents and critics, including 13 journalist, are to be tried in Addis Ababa for allegedly fomenting insurrection.[21]
Preliminary Conclusions and Recommendations
1. OHCHR’s has expertise in trial observation both at headquarters and in the field, but this expertise is diffuse, not well documented and not well organized. There should be an effort to establish a roster of individuals within the organization who have experience with trial observation so that they can exchange experiences, their efforts can be better documented, and a ready pool of experienced persons could be drawn upon in the event OHCHR was asked to engage in trial observation in one or more high profile cases. A meeting on this subject could be organized.
2. Both OSCE and DPKO appear to have more experience in trial observation globally than OHCHR, although there may be individual country situations where this is not true. Efforts should be made to have more interaction with OSCE and DPKO not only at the level of the field, but also at a headquarters level to improve the knowledge base of OHCHR in this area. It would be useful to organize meetings for this purpose.
3. Tension between OHCHR and DPKO exists on the subject of trial observation, with DPKO informally taking the view that OHCHR does not have adequate capacity in terms of trained legal professionals to undertake this type of work. These tensions should be addressed and resolved through a better coordination of efforts. It should be acknowledged that DPKO has far more resources than OHCHR to undertake this type of work in peace operation missions. OHCHR should also take under review informal criticism that its staff may not have the same level of legal expertise as DPKO, and take steps to address this situation if this criticism is shown to be justified. Programmes by DPKO on justice sector reform do appear to be far more comprehensive in approach and to address issues that are not commonly thought of as human rights issues. CBB should take the lead in discussions with DPKO, with the Rule of Law and Democracy Unit playing a supporting role. Ultimately, OHCHR may need to consider how it approaches this issue at an organizational level and in terms of minimum qualifications of staff that undertake this type of work.
4 Trial observation undertaken by OHCHR should be undertaken by OHCHR staff or consultants working under the authority of OHCHR. In principle, NGOs should not be authorized to undertake trial observation on behalf of OHCHR, although this does not mean that OHCHR should not take into account trial observation experiences by NGOs when assessing the fairness of a particular trial or more broadly the state of implementation of judicial reform in a given country.
ANNEX: BASIC INFORMATION ABOUT TRIAL OBSERVATION
A. The choice of trials and strategic objectives
Trial monitoring normally concerns criminal trials, and frequently criminal trials that involve “political offences” or that have a “political character”. Nevertheless, there has been trial monitoring of civil cases, for example, in the context of a defamation proceeding against a prominent judge or political opponent. Trial monitoring also has taken place where the proceeding appears designed to discredit certain judges or lawyers with a view to undermine the independence of the judiciary or to intimidate defence counsel. The key goals of trial monitoring[22] can be summarized as follows:
· to make known to the court, the authorities of the country and to the general public the interest in and concern for the trial in question;
· to encourage the court to give the accused a fair trial. NGOs with experience in this field have concluded that a trial monitor’s presence often changes the atmosphere in the courtroom and facilitates the defence attorney’s role by making the court more cognizant of the defence’s arguments, encouraging defence counsel and the defendant to be more forceful in contesting the prosecution’s claims, in attracting media and international attention to the trial;
· to obtain more information about the conduct of the trial, the nature of the case against the accused, and the legislation and circumstances under which the person is being tried;
· to promptly prepare a report at the conclusion of the proceedings for the organization for which the trial observer works, with conclusions on the fairness of the trial observed, with a view that the publicity that this report receives may serve to enhance a defendant’s chances of having his or her case fairly reviewed on appeal;
· to inform the government and the general public of possible irregularities in the conduct of the trial, including conformity with domestic criminal procedure and law, international standards and customary international law, with a view to prompting the government to take action to bring criminal trials into conformity with international human rights standards regarding fair trial.
B. Basic fair trial criteria
In order to avoid possible challenges to the legal nature of the standards employed by a trial monitor, the standards against which a trial is to be assessed in terms of fairness should be those norms whose legal origin is considered beyond question.[23] These include:
· the laws of the country that are applicable to the trial;
· the human rights treaties – regional and international - to which the State is a party, and
· norms of customary international law
In interpreting the provisions of international and regional human rights treaties, there exist a number of resources that may be useful to a trial monitor when additional guidance is needed to understand the application of the text of an international or regional instrument.[24]
Below is a list of summary of the most basic fair trial criteria. More comprehensive information on fair trial criteria, and also extensive commentary on how the below provisions have been previously interpreted, is available in a number of publications specifically devoted to trial monitoring in particular, as well as to the subject of fair trial more generally.
1) Pre-trial rights
· The prohibition of arbitrary arrest and detention
· The right to know the reasons for arrest
· The right to legal counsel
· The right to a prompt appearance before a judge to challenge the lawfulness of arrest and detention
· The prohibition of torture and the right to humane conditions during pre-trial detention
· The prohibition of incommunicado detention
2) The trial
· Equal access to, and equality before, the courts
· The right to a fair hearing
· The right to a public hearing
· The right to a competent, independent and impartial tribunal established by law
· The right to the presumption of innocence
· The right to prompt notice of the nature and cause of criminal charges
· The right to adequate time and facilities for the preparation of a defence
· The right to a trial without undue delay
· The right to defend oneself in person or through legal counsel
· The right to examine witnesses
· The right to an interpreter
· The right not to incriminate oneself
· The prohibition of retroactive application of criminal laws
· The prohibition of double jeopardy
3) Post-trial rights
· The right to appeal
· The right to compensation for a miscarriage of justice
C. The mechanics of trial observation
There are multiple issues involved in trial observation. These include the following:
· Selection of the trial observer
· Briefing of the trial observer and formalizing the terms of reference for the mission
· Informing the Government and request for conditions that would allow the trial monitor to freely perform his or her functions
· Linguistic knowledge/need for interpreters and translators
· Contacts and interviews during the mission
· Travel and housing arrangements/required visas
· Public statements before, during and after the mission
· Seating in the courtroom: notes
· The report of the trial monitor
Going through these issues one by one briefly, the issue of the selection of the trial observer is crucial. The success of the mission will depend on the trial monitor’s independence, impartiality and qualifications. Other relevant factors would include knowledge of applicable domestic law and international human rights standards, familiarity with the case and language skills. In certain cases, a trial monitor’s nationality, ethnicity or gender could be considered a factor in having the person perceived as impartial. Several international human rights NGOs, including Amnesty International, have rules against using local lawyers as trial observers because this may give rise to claims of bias. Although there is no generalized practice on whether it is better to send a staff member of the organization doing the monitoring or a well known lawyer as a consultant, it some contexts the fact that a consultant may have an international reputation may give rise to a perception of bias because the person’s reputation is based on previous activities that are well known.
Evidently, the trial monitor should be briefed on domestic law and the situation concerning the trial before departure and should have clear terms of reference for the mission. Similarly, the Government concerned should be informed of the mission, the terms of reference and the Government’s cooperation with the trial observer should be requested, including issuance of an appropriate visa.
Ideally, the trial monitor will speak and read fluently the language that will be used in the trial that he or she is sent to observe. However, in many cases this is not possible and the trial monitor will need the assistance of an interpreter to provide a soft voice translation of the proceedings as well as in meeting with the judges of the case, the prosecutor, defence counsel and the defendants. The service of the same person should also be used to have translations of relevant laws and documents in the court file or presented and used prior to, during and after the trial. It may be that it is preferable to use an interpreter who is from outside the country to avoid the potential for harassment or reprisals by the government.
Regarding travel and housing, if assistance is given in-country, it should be from a person or entity not involved in the proceedings. The trial monitor should also not stay in a hotel that is being used or where persons associated with the trial are staying to preserve his or her impartiality.
In terms of public statements, while practice is not uniform, most of the sources consulted indicated that the trial monitor should be free to inform the press about his or her presence, the purpose of the mission and that a report will be drawn up following the end of the trial observation for OHCHR. Normally, the statement would indicate that no further statements would be made until the conclusion of the trial and the submission of the report to the organization for which he or she works. At that conclusion of the trial, the trial monitor would promptly draft a report and submit it to OHCHR, which then decide whether to issue a statement of the trial observation. Only exceptional circumstances, such as the breakdown of the judicial process would merit a comment on the merits during the trial itself, and this only in after consultation with headquarters.
The trial monitor should, if possible, meet with the presiding judge, the prosecutor and the defence counsel before the proceedings begin. If it was helpful to clarify the trial monitor’s presence, a neutral party such as the presiding judge should indicate that the trial monitor is there so the participants and the public so that note can be taken of the trial monitor’s presence. The trial monitor should also, if possible, interview the defendant, in full confidentiality, in order to observe his or her physical and mental conditions and the circumstances of his or her detention, including the circumstances of any interrogations that have taken place. If there are more than one defendant, they should be interviewed individually and not as a group. The trial monitor should also review all documents in the court file, including those that are presented at trial. The trial monitor should try to meet with other persons, including government officials, who may have knowledge of the background of the case. Articles by journalists prior to the trial and during the trial should also be collected as background information.
When observing the trial, it is best not to sit in the section with the public but to have a neutral position in the courtroom apart from the public as well as the prosecutor and defence counsel. The trial monitor should take extensive notes to have his or her record of the proceedings. Some sources have indicated that the trial monitor should take notes in a type of short hand that only he or she can understand, in the event that the Government attempts to review the notes. Normally the report should be prepared promptly, within a week or so after the trial, but after the trial monitor has left the country. All sources consulted that promptness in drafting up the report is vital, in order to maximize the effect of an public statement made by the sending organization.
One issue that is not uniformly answered is whether the Government should be allowed to see a copy of the report and have the opportunity to comment and respond before it is made public, or in the alternative, before OHCHR makes a statement. If the report is sent to the Government, a precise time limit should be indicated beyond which OHCHR should feel free to issue a statement and/or the report. Although some may question issuing a statement and/or report at the conclusion of the proceedings, the statement and/or report may help to ensure that the defendant’s appeal receives the attention it deserves on appeal, including any irregularities noted by the trial monitor, and that the Government takes steps to bring its trial proceedings into accordance with regional and international standards.
As to the structure of the report, the following non-exhaustive list includes key information that should be included in a report on trial monitoring:
· The terms of reference for the trial observation
· The background of the case
· The facts of the case as revealed at trial and by independent fact-finding, with particular emphasis on the prosecution and defense evidence
· The charges, the applicable laws, pre-trial procedures, the trial process, the judgement of the court and any subsequent proceedings
· The mental and physical condition of the defendant and the conditions of confinement
· An evaluation of the fairness of the proceedings, applicable laws and conformity of the trial with national, regional and international law
· A conclusion
Additionally, the following material should, if possible, be gathered as supplementary information or reference material:
· Copies of relevant rules of procedure, laws and court decisions
· Copies of charges, transcripts and the court’s judgement
· A description of the trial monitor’s methodology, as well as a list of material studies and persons interviewed
· Sensitive information which should be omitted from the published report
· Copies of newspaper articles referring to the trial and/or the trial monitor’s presence, with the names of the media sources and the dates of publication
· Additional information not strictly within the trial monitor’s missions such as information about other prisoners, other trials and recent laws that are relevant
· Practical suggestions and observation that may be useful for future trial monitoring missions.
[1] In addition to the International Covenant on Civil and Political Rights, the other international human rights instrument most relevant in this context would be the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Nevertheless, other international human rights instruments could be relevant such, inter alia, the Convention of the Rights of the Child which has provisions on fair trial.
[2] Regional international instruments that may be relevant would include the European Convention for the Protection of Human Rights and Fundamental Freedoms; the American Convention on Human Rights; and the African Charter on Human and People’s Rights.
[3] The provisions of the Universal Declaration of Human Rights are normally considered as part of customary international law and may be of paramount importance if a state has not ratified the ICCPR, the Torture Convention or a regional international human rights instrument. The most relevant articles of the UDHR to the right to a fair trial are articles 5, 9, 10 and 11.
[4] Training Manual on Human Rights Monitoring, Chapter XIII: “Trial Observation and Monitoring the Administration of Justice”, Professional Training No. 7, OHCHR, Geneva, 2001
[5] Rule-of-law tools for post-conflict states: Monitoring Legal Systems, OHCHR, Geneva, 2006; Rule-of-law tools for post-conflict states: Mapping the justice sector, OHCHR, Geneva, 2006.
[6] What Is a Fair Trial? A Basic Guide to Legal Standards and Practice, Lawyers Committee for Human Rights, March 2000, New York; Fair Trials Manual, Amnesty International, 1998, London; Trial Observation Manual, International Commission of Jurists, 2002, Geneva; Trial Monitoring Manual, OSCE Mission to Bosnia and Herzegovina, Sarajevo, 2004; Trial Observation Manual: Guidelines for ICJ Observers to Trials – The Middle East Programme, The Swedish Section of the ICJ, 2003, Stockholm; Manual on Human Rights Monitoring, Chapter 8: “Trial Observation”, Norwegian Institute of Human Rights, Oslo, 1996.
[7] UN field presences is given the broadest possible interpretation here and includes, for example, OHCHR field presences, UN missions established by Security Council resolution and UNDP. Trial observation programmes have been undertaken by field presences with the support of OHCHR, either directly or indirectly.
[8] For example, in 1999 United Nations High Commissioner Mary Robinson named Bill Butler as her special envoy to monitor the trial of the Kurdish leader Ocalan and an internal report was prepared. Similarly, United Nations High Commissioner Louise Arbour requested to monitor trials in Uzbekistan in connection with the prosecution of persons alleged to be involved in the events in Andijan, Uzbekistan. These trials attracted international attention in 2005, but ultimately did not do so because the Government of Uzbekistan placed restrictions on the scope
of activities of an OHCHR trial observer.
[9] This trial observation took place on appeal in 1998 after the defendant Mr. Cheikh Saad-Bouh Kamara had been arrested, tried and imprisoned for having founded and presided over an association for the victims of slavery that the Government of Mauritania had refused to legally register. Mr. Kamara was arrested while he was a member of the UN Trust Fund for Victims of Contemporary Forms of Slavery and shortly before its next session. On the basis of a proposal of the High Commissioner, the Secretary-General named an official of OHCHR, rather than OLA or DPA, as his trial observer. A confidential report of the Secretary-General was prepared by OHCHR’s trial observer in cooperation with OLA. Mr. Kamara was subsequently pardoned by the President of Mauritania.
[10] See e.g. Report of the Secretary-General, Role and achievements of the Office of the United Nations High Commissioner for Human Rights in assisting the Government and people of Cambodia in the promotion and protection of Human Rights, 6 August 2002 (A/57/277), paras 10-11; Report of the Secretary-General on the situation in Abkhazia, Georgia, 14 July 2004 (S/2004/570), para. 25; “Feature: Trial monitoring builds transparency in Montenegro”, OSCE Mission to Serbia and Montenegro, 22 April 2003) (http://www.osce.org)(“the/ (“The trial monitoring project in Montenegro relies on the co-operation of the OSCE with five international organizations : Office of the United Nations High Commissioner for Human Rights”; similar OSCE projects exist in Croatia and Kosovo); “Christopher Harland: Monitoring Genocide Trials in Rwanda”, (http://www.dfait-maeci.gc.ca/) (last updated 03.03.05) (description of the trial monitoring programme of the United Nations Human Rights Field Operation in Rwanda and its work with OHCHR); Lettre date du 24 juin 2005, addressee au Président du Conseil de sécurité par le Secrétaire general, Annex II, Report of the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, para. 29, 26 May 2005 (S/2005/458)(refers to trial observation activities undertaken by UN officials and NGOs); interviews with various UN colleagues.
[11] See e.g. “Kosovo: Review of the criminal justice system: 1999-2005: Reforms and residual concerns, March 2006”, OSCE/UNMIK (http://www.osce.org/). These reports by the Kosovo mission were among the most comprehensive review of actual field experiences relating to the subject of trial observation, and more broadly legal system monitoring.
[12] Regular reports on developments can be found on the website of the United Nations Mission of Liberia’s website that describes the human rights component of its rule of law programmes (www.unmil.org/content.asp?cat=humanrights)
[13] It is interesting to note that the thematic reports issued by the JSAP were rather broad based and covered subjects that covered human rights issues, as well as subjects less commonly considered human rights issues. These thematic reports included an assessment of courts for minor offences (thematic report 1); inspection of the municipal public prosecutor’s office in Livno, Canton (thematic report II); arrest warrants, amnesty and trials in absentia (thematic report III); interim report on delays and detention ; case study in economic reform – inspection of the registry for companies and public institutions in Bihac (thematic report IV); a report on the implementation of amnesty legislation; enforcement: execution of court judgements in civil cases (thematic report V); expert evidence: the use and misuse of court experts (thematic report VI); JSAP and the judicial review process in Bosnia and Herzegovina (thematic report VII): prosecuting corruption: a study of the weakness of the criminal justice system in Bosnia and Herzegovina (thematic report VIII); and political influence: the independence of the judiciary in Bosnia and Herzegovina (thematic report IX).
[14] See generally: website of the OSCE Mission in Bosnia and Herzegovina (www.oscebih.org).
[15] Discussion with Charles Briefel, Senior Rule of Law Officer, Rule of Law Unit, UNAMA. Mr. Briefel also supervised the trial observation programme of OSCE in Bosnia and Herzegovina from 2003-2005.
[16] Adopted by the Security Council at its 3920th meeting, 27 August 1998.
[17] Letter dated 25 April 2000 from the Secretary-General addressed to the President of the Security Council, adopted 26 April 2000 (S/2000/349)
[18] “UN monitor decries Lockerbie judgment”, BBC News, 14 March 2002 (http://news.bbc.co.uk).
[19] “Noted concerning the status of Prof. Hans Koechler as international observer at the Lockerbie trial in the Netherlands”, issued by the International Progress Organization, Vienna, 2 June 2002.
[20] “High Commissioner for Human Rights Urges Uzbekistan to Respect Fair Trial Standards”, Press Release, 23 December 2005.
[21] “Reporters Without Borders Calls for UN to monitor court proceedings”, Reporters Without Borders, 21 December 2005 (www.ethiomedia.com)
[22] These goals draw largely on goals stated in the publications in the bibliography, see in particular What Is a Fair Trial? A Basic Guide to Legal Standards and Practice, Lawyers Committee for Human Rights, March 2000, New York, pp. 1-2; International Commission of Jurists, Trial Observation Manual, Geneva, 2002, pp. 3-4; Training Manual on Human Rights Monitoring, Chapter XIII: “Trial Observation and Monitoring the Administration of Justice”, Professional Training No. 7, OHCHR, 2001, Geneva, pp. 285-286.
[23] This would normally exclude non-binding documents that may nevertheless assist the trial monitor in evaluating the conduct of trial proceedings and their conformity with applicable domestic laws, regional and international human rights instruments. For a partial listing, see e.g. Basic Principles for the Treatment of Prisoners, General Assembly resolution 45/111, 14 December 1990; Standard Minimum Rules for the Treatment of Prisoners, adopted 30 August 1955, by the First UN Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc. A/CONF/611, Annex I, Economic and Social Council resolution 663 C (XXIV), 31 July 1957 and resolution 2076 (LXII), 13 May 1977; Body of Principles for the Protection of All Persons under Any form of Detention or Imprisonment, General Assembly resolution 43/173, 9 December 1988; Basic Principles on the Role of Lawyers, adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August- 7 September 1990; Basic Principles on the Independence of the Judiciary, General Assembly resolution 40/32, 29 November 1985 and resolution 40/146, 13 December 1985; Guidelines for the Role of Prosecutors, adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August- 7 September 1990; Code of Conduct for Law Enforcement Official, General Assembly resolution 34/169, 17 December 1979.
[24] See e.g. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, OHCHR, Geneva, 2003; Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary (2nd edition), N.P. Engel, Kehel, Germany, 2005; Sarah Joseph et al, The International Commentary on Civil and Political Rights: Cases, Materials and Commentary (2nd edition), Oxford University Press, 2005; Clare Ovey and Robin White, Jacobs and White: The European Convention on Human Rights (4th edition), Oxford University Press, 2006; Philip Leach, Taking a Case to the European Court of Human Rights (2nd edition), Oxford University Press, 2005; Jo Pasqualucci, The practice and procedure of the Inter-American Court of Human Rights, Cambridge University Press, 2003.
Who guards the Peacekeepers?
Who guards the guards?: the international criminal court and serious crimes commited by peacekeepers in Africa
Authors: ISS; du Plessis, M.; Pet‚, S.
Produced by: Institute of Social Studies (ISS), Netherlands (2006)
This document traces the rise of the International Criminal Court (ICC) and discuss the different crimes in its jurisdiction. The authors seek to establish the extent to which the ICC may be expected to play a practical role in the prosecution of peacekeepers in Africa for serious crimes committed while involved in peacekeeping operations.
The authors conclude that the role of the ICC will be limited due to the following reasons: the types of crimes over which the ICC exercises jurisdiction are strictly defined the jurisdiction of the court is limited by the principle of "complementarity" Each of these factors is discussed in detail and followed by an examination of the particular problems related to peacekeepers from the United States of America.
The authors conclude with a discussion of further responses to crimes by peacekeepers, which do not involve prosecution in terms of national or international law. The overall conclusion is that the role of the ICC in relation to crimes committed by peacekeepers in Africa will be limited. Although there may be exceptions, serious crimes committed by United Nations (UN) peacekeepers in Africa are isolated, and the perpetrators do not possess the necessary intent to enable such crimes to be classified as genocide or as crimes against humanity. It is more likely that serious crimes committed by peacekeepers may amount to war crimes, although it is clear that the ICC is more concerned with war crimes committed on a wide scale, rather than with isolated incidents. [adapted from authors]
Available online at: http://www.eldis.org/cf/rdr/rdr.cfm?doc=DOC21761
Authors: ISS; du Plessis, M.; Pet‚, S.
Produced by: Institute of Social Studies (ISS), Netherlands (2006)
This document traces the rise of the International Criminal Court (ICC) and discuss the different crimes in its jurisdiction. The authors seek to establish the extent to which the ICC may be expected to play a practical role in the prosecution of peacekeepers in Africa for serious crimes committed while involved in peacekeeping operations.
The authors conclude that the role of the ICC will be limited due to the following reasons: the types of crimes over which the ICC exercises jurisdiction are strictly defined the jurisdiction of the court is limited by the principle of "complementarity" Each of these factors is discussed in detail and followed by an examination of the particular problems related to peacekeepers from the United States of America.
The authors conclude with a discussion of further responses to crimes by peacekeepers, which do not involve prosecution in terms of national or international law. The overall conclusion is that the role of the ICC in relation to crimes committed by peacekeepers in Africa will be limited. Although there may be exceptions, serious crimes committed by United Nations (UN) peacekeepers in Africa are isolated, and the perpetrators do not possess the necessary intent to enable such crimes to be classified as genocide or as crimes against humanity. It is more likely that serious crimes committed by peacekeepers may amount to war crimes, although it is clear that the ICC is more concerned with war crimes committed on a wide scale, rather than with isolated incidents. [adapted from authors]
Available online at: http://www.eldis.org/cf/rdr/rdr.cfm?doc=DOC21761
Handbook on Housing and Property Restitution
April 12, 2006
To make a very long story short(er), as you may already be aware the Sub-Commission Rapporteur on housing and property restitution, Paulo Sérgio Pinheiro, has for several years been working on a study on housing and property restitution, with the NGO COHRE as main support. In August 2005, the Sub-Commission endorsed his proposed Principles on Housing and Property Restitution for Refugees and Displaced Persons.
IDD/OCHA has taken the initiative to a joint project to prepare a hand book for practitioners in the field on housing and property restitution for refugees and displaced persons based on the so called "Pinheiro Principles", for broad distribution at the field level (OHCHR, UNHCR, FAO, UNDP and a couple of others are also involved). An inter-agency working meeting on the draft was held on 10 April to review the first draft presented by the consultant hired to work on this.
It should be underlined that the first draft, raised fundamental concerns (!) from OHCHR's side, particularly with respect to inaccuracies with respect to the legal analysis (and the presentation of the principles as a United Nations principles although they have, as of yet, only been endorsed by the Sub-Commission). During the inter-agency working meeting it was decided that the draft should be considerably revised, that the legal analysis should be kept to a minimum (and be thoroughly reviewed by us) and that the emphasis should be on practical guidance illustrated by real-life examples of housing and property restitution work from various country situations.
In addition to the review of the contents itself, OHCHR has in explicitly been asked to provide examples of best practices on housing and property restitution for the next draft of the handbook. However, "lessons learned" examples are also welcome. So far appreciated input has been received from OHCHR/Nepal, but CBB's assistance in providing examples from other regions as well is very much needed.
We have been asked to provide our contribution by the end of April, and in order for us to be able to consolidate our input I would appreciate contributions by 25 April. I am at your disposal if any clarification is needed.
In addition to the first draft of the handbook (which is now largely redundant...!!!), I am also attaching the "Pinheiro Principles" and explanatory notes for reference, if needed.
Best regards and many thanks in advance, Cecilia
To make a very long story short(er), as you may already be aware the Sub-Commission Rapporteur on housing and property restitution, Paulo Sérgio Pinheiro, has for several years been working on a study on housing and property restitution, with the NGO COHRE as main support. In August 2005, the Sub-Commission endorsed his proposed Principles on Housing and Property Restitution for Refugees and Displaced Persons.
IDD/OCHA has taken the initiative to a joint project to prepare a hand book for practitioners in the field on housing and property restitution for refugees and displaced persons based on the so called "Pinheiro Principles", for broad distribution at the field level (OHCHR, UNHCR, FAO, UNDP and a couple of others are also involved). An inter-agency working meeting on the draft was held on 10 April to review the first draft presented by the consultant hired to work on this.
It should be underlined that the first draft, raised fundamental concerns (!) from OHCHR's side, particularly with respect to inaccuracies with respect to the legal analysis (and the presentation of the principles as a United Nations principles although they have, as of yet, only been endorsed by the Sub-Commission). During the inter-agency working meeting it was decided that the draft should be considerably revised, that the legal analysis should be kept to a minimum (and be thoroughly reviewed by us) and that the emphasis should be on practical guidance illustrated by real-life examples of housing and property restitution work from various country situations.
In addition to the review of the contents itself, OHCHR has in explicitly been asked to provide examples of best practices on housing and property restitution for the next draft of the handbook. However, "lessons learned" examples are also welcome. So far appreciated input has been received from OHCHR/Nepal, but CBB's assistance in providing examples from other regions as well is very much needed.
We have been asked to provide our contribution by the end of April, and in order for us to be able to consolidate our input I would appreciate contributions by 25 April. I am at your disposal if any clarification is needed.
In addition to the first draft of the handbook (which is now largely redundant...!!!), I am also attaching the "Pinheiro Principles" and explanatory notes for reference, if needed.
Best regards and many thanks in advance, Cecilia
Frequently Asked Questions on a Human Rights based Approach to Development Cooperation
March 2006
Following extensive internal consultations in OHCHR, as well as with development partners, OHCHR has finalised a publication entitled 'Frequently Asked Questions on a Human Rights Based Approach to Development Cooperation.' The publication is available in electronic form in English at the link:
http://www.ohchr.org/english/about/publications/docs/FAQ_en.pdf.
Hard copies are expected shortly, and translations into French, Spanish and Arabic should be at hand towards mid-2006.
The demand for this product emerged from a UN inter-agency meeting on human rights and development cooperation in Stamford, Connecticut, in 2003. The themes selected for discussion were drawn from OHCHR and inter-agency consultations. The publication is addressed principally to the needs of those working on human rights and development issues within the UN system, including in connection with Common Country Assessments (CCA), UN Development Assistance Frameworks (UNDAF) and poverty reduction strategies at the country level.
Part I is mainly conceptual in orientation, examining some commonly helped misconceptions about the nature of human rights obligations under international treaties. Part II discusses the relationship between human rights, development and poverty reduction at a conceptual level, and looks at how human rights principles can help resolve policy trade-offs and influence national budget processes. Sections III and IV focus more specifically on the meaning and practical application of what has come to be known as a 'human rights based approach' to development, tailored to UN programming tools and needs, respecting the conceptual integrity and functional importance of internationally recognised human rights. As indicated in the High Commissioner's foreword, a focus on internal institutional incentives and accountability systems must also be kept to the fore, if methodological advances in 'rights-based programming' are to have credibility and sustained impact.
The discussion for each selected question is necessarily brief and synthetic in nature, as are the practical illustrations given. Additional resources are listed following particular questions, along with a more extensive list of web-based references in Annex III, as a guide to further inquiries.
I hope that this publication is useful to those working with UN partners at country level. Any feedback would be welcome.
Following extensive internal consultations in OHCHR, as well as with development partners, OHCHR has finalised a publication entitled 'Frequently Asked Questions on a Human Rights Based Approach to Development Cooperation.' The publication is available in electronic form in English at the link:
http://www.ohchr.org/english/about/publications/docs/FAQ_en.pdf.
Hard copies are expected shortly, and translations into French, Spanish and Arabic should be at hand towards mid-2006.
The demand for this product emerged from a UN inter-agency meeting on human rights and development cooperation in Stamford, Connecticut, in 2003. The themes selected for discussion were drawn from OHCHR and inter-agency consultations. The publication is addressed principally to the needs of those working on human rights and development issues within the UN system, including in connection with Common Country Assessments (CCA), UN Development Assistance Frameworks (UNDAF) and poverty reduction strategies at the country level.
Part I is mainly conceptual in orientation, examining some commonly helped misconceptions about the nature of human rights obligations under international treaties. Part II discusses the relationship between human rights, development and poverty reduction at a conceptual level, and looks at how human rights principles can help resolve policy trade-offs and influence national budget processes. Sections III and IV focus more specifically on the meaning and practical application of what has come to be known as a 'human rights based approach' to development, tailored to UN programming tools and needs, respecting the conceptual integrity and functional importance of internationally recognised human rights. As indicated in the High Commissioner's foreword, a focus on internal institutional incentives and accountability systems must also be kept to the fore, if methodological advances in 'rights-based programming' are to have credibility and sustained impact.
The discussion for each selected question is necessarily brief and synthetic in nature, as are the practical illustrations given. Additional resources are listed following particular questions, along with a more extensive list of web-based references in Annex III, as a guide to further inquiries.
I hope that this publication is useful to those working with UN partners at country level. Any feedback would be welcome.
Subscribe to:
Posts (Atom)