ICCB meeting
Ghana, November 2013
SCA report
Introduction
This report covers:
- the adoption of the revised ICC General Observations by the ICC Bureau;
- the meeting of the ICC SCA in May 2013;
- a proposal by the SCA that ICC Bureau consider an amendment to the ICC Statute to allow for an interim review of accreditation within the 5 year re-accreditation cycle; and,
- a briefing on how the SCA is dealing with applications for accreditation from human rights institutions established by non-State entities.
New General Observations
Item 5.1 of the ICC’s Strategic Plan for 2011 – 2013called for improvements to the accessibility and transparency of the ICC accreditation process.
In May 2011 the SCA commenced a review aimed at ensuring new General Observations would provide clearer information on the practical application of the Paris Principles, in particular by reference to their underlying concepts, rationale and objectives.
The revised General Observationswere presented to, and adopted by the ICC Bureau at its last meeting in May 2013. The revised text interprets both the essential requirements and broad objectives of the Paris Principlesin a more detailed manner, and includesboth general statements and explanatorysections which provides justification for each of the General Observations.
The work was largely undertaken by the SCA’s Drafting Working Group, which is led by Mr David Langtry. His work and those of his colleagues should be commended.
The new General Observations were used by the SCA at its meeting in May 2013.
Report of the Sub-Committee – May 2013
The last Sub-Committee meeting took place in Geneva from 13 – 16 May 2013, where members considered:
- new applications from the National Institution of Haiti;
- applications for re-accreditation from the national institutions of Armenia, Croatia, Egypt, France, Georgia, Guatemala, Malawi, Rwanda, Togo, Uganda and Venezuela; and also
- information received in relation to changes to the founding legislation of the National Human Rights Commission of Nepal.
The following is a summary of the key issues that arose in that meeting and may have ongoing implications for the ICC, the ICC Bureau or member institutions.
- Assessing the performance of an applicant for accreditation
In assessing an NHRI for accreditation, the SCA considers both the legislative basis for the NHRIand its performance in practice.
In order to assess performance, the Application for accreditation and re-accreditation requires that an applicant provide a copy of an annual report for the previous year in its published form.
The reason for this is clear. An NHRI’s published annual report provides a public statement about its operations. Such a report is open to scrutiny by the Parliament, by Government and by civil society and is thus an important tool in assessing the practical effectiveness of an NHRI.
Importantly, the SCA has been clear that it cannot consider an applicant for ‘A’ accreditation until the applicant has been operating for at least one year and be able to provide a published annual reportthat addresses the scope of its statutory functions.
- Comprehensive and timely responses to human rights violations
In assessing performance, the SCA is also concerned to see that applicants respond to human rights violations in a timely and comprehensive manner.
To determine if a national institution is responding in a detailed and timely fashion theSCA undertakes a review and comparison of:
- theNHRI’s own annual and thematic reports (as just mentioned); and,
- report from the UN, UPR, UN Treaty Bodies and Special Rapporteurs and other credible sources.
The SCA has highlighted that once an NHRI is aware of a human rights violation it is not sufficient to simply bring the issue to the attention of the authorities. The SCA would expect to see an NHRI monitoring and undertaking inquiries into violations, making recommendations and systematically following up on recommendations and findings.
- Selection Process
As with previous sessions, the Sub-Committee found it necessary to stress regularly the need for improvements to selection processes. The SCA commented that legislation should go beyond simply stating broad criteria for candidacy, and establish a process that is both comprehensive and publicly accessible.
The Sub-Committee’s commentary to a significant percentage of applicantsraised the following issues:
-a transparent process;
-advertising vacancies broadly;
-maximising the number of potential candidates from a wide range of societal groups;
-assessing each applicant against pre-determined, objective and publicly available criteria;
-broad consultation and/or participation in the application, screening and selection process; and
-selecting members to serve in their own individual capacity rather than on behalf of the organization they represent.
These issues are drawn from the ICC Bureau’s General Observation 1.8, with additional guidance in 1.7 and 1.9.
The SCA has regularly commented that selection processes should be specified in writing, preferably in legislation, but if not, in regulationsor binding administrative guidelines so that the selection processis clearly defined, applies to all candidates, and can be independently monitored for compliance.
POlicy issues
Two policy issues are raised for consideration by ICC Bureau members
- a proposal to amend the ICC Statute to allow for an interim review of accreditation within the 5 year re-accreditation cycle. The issue is outlined in Attachment 1 below; and,
- a briefing note explaining how the SCA is dealing with applications for accreditation from human rights institutions established by non-State entities. The details are outlined in Attachment 2 below.
ATTACHMENT 1
ISSUE: INTERIM REVIEW OF ACCREDITATION.
PURPOSE
To brief ICC Bureau members on the practice of conducting an interim review of a member’s accreditation status within the normal 5 year accreditation period, and to provide advice on future practice.
BACKGROUND
Accreditation provisions in the ICC Statute
1. Pursuant to Articles 10 – 23 of the ICC Statute, the ICC accredits National Human Rights Institutions (NHRIs) for compliance with the Paris Principles.
2. The Statute relevantly provides that:
- NHRIs seeking accreditation for compliance with relevant international standards must apply to the ICC, (Article 10);
- the ICC’s Sub-Committee on Accreditation (SCA) undertakes an assessment of an applicant’s compliance with international standards, and provides a report and recommendation to the ICC Bureau, (Article 11.1).
- the ICC Bureau makes final decisions on accreditation based on the SCA report and recommendation, (Article 11.1);
3. The ICC Statute also provides that the ICC may institute a review of accreditation where a change in circumstances may have affected an NHRI’s compliance with international standards (Article 16.2).
4. In addition, the ICC Bureau may suspend accreditation in certain exceptional circumstances, (article 18.2), and for failure to submit any or sufficient documentation for reaccreditation (Article 20).
5. The ICC Statute initially specified that the ICC Bureau could determine the ‘periodicity’ of reaccreditation however amendments in 2009 removed this provision. The existing statute does not specify that accreditation is to be granted for a specific period of time. Rather, it states that NHRIs are subject to regular reaccreditation on a 5 yearly basis, (Article 15).
Past Practice
6. The ICC Bureau generally accredits an NHRI as either compliant (A) or partially compliant (B) with the Paris Principles. A time frame is not specified but by implication of Article 15, the ICC Bureau’s decision would normally apply until the next 5 year accreditation review.
7. On various occasions the ICC Bureau has made a decision to reaccredit an NHRI on condition that the NHRI return to the Sub-Committee on Accreditation within 1 or 2 years to provide additional information on specific issues of concern.
8. Such an approach has been used when the Sub-Committee on Accreditation and the ICC Bureau has concerns about an NHRI and are of the opinion that neither full re-accreditation for a period of 5 years, nor a recommendation to downgrade accreditation, is appropriate in the circumstances.
9. The approach was based in part on past practice and on Article 11.2 which provides that:
“In coming to a decision, the ICC Bureau and the Sub-Committee shall adopt processes that facilitate dialogue and exchange of information between it and the applicant NHRI as deemed necessary to come to a fair and just decision”.
Legal Challenge
10. In 2011, the National Human Rights Commission of India (NHRCI) was the subject of an accreditation review that recommended it return to the Sub-Committee on Accreditation in 2 years in order to address certain issues that the SCA thought important.
11. The NHRCI challenged the recommendation of the Sub-Committee on Accreditation, but the recommendation was upheld by the ICC Bureau.
12. The NHRCI subsequently challenged whether the ICC had the power to require an interim accreditation review and the SCA recommended the ICC Chairperson seek legal advice.
13.The ICC’s Geneva based lawyer advised that in his view the ICC Statute does not give the ICC Bureau power to reaccredit on condition that an applicant return to the SCA within the 5 year period to address issues of concern. In accordance with this advice, the SCA has not subsequently made recommendations for interim reviews.
COMMENT
14. The Sub-Committee is of the view that the ability of the ICC Bureau to reaccredit with a requirement that the NHRI return for review within the 5 year accreditation cycle is important and as such, an amendment to the ICC Statute should be considered
15. Such a power would provide the ICC Bureau with an alternative course of action where it has concerns that re-accreditation for another 5 years is not appropriate, but where, for various reasons, the concerns do not justify an immediate recommendation to downgrade the institution.
16. In the past this approach has been used to request additional information about both the legislative basis for, and practical performance of, an NHRI in circumstances where these have been the subject of concern, or where fundamental legislative changes have been proposed to ensure Paris Principles compliance. It is recognised that such matters cannot be dealt with in a short period of time. Such an approach therefore protects the credibility of the ICC and the accreditation process.
17. Such an approach also has benefits for applicant NHRIs, since they are given additional time to take action, or to provide additional information to address the concerns of the ICC Bureau, while maintaining their existing accreditation status in the interim period. This avoids the potential embarrassment of an immediate recommendation to downgrade their accreditation status.
18. In the absence of such a power, the ICC Statute provides the Sub-Committee on Accreditation with very limited options. As mentioned above, Article 11.2 provides that:
“In coming to a decision, the ICC Bureau and the Sub-Committee shall adopt processes that facilitate dialogue and exchange of information between it and the applicant NHRI as deemed necessary to come to a fair and just decision”.
19. In appropriate circumstances, the SCA may therefore defer an accreditation recommendation pending the provision of additional information.
OPTIONS
Option 1:
The ICC Bureau propose to the ICC General Meeting an amendment to the ICC Statute to specifically provide for an interim review.
Article 15 currently provides:
“All NHRIs that hold an ‘A’ status are subject to re-accreditation on a five year cyclical basis”.
An amendment might take the following form:
“An NHRIaccredited with ‘A’ status accreditation is subject to re-accreditation on a five year cyclical basis unless the ICC Bureau determines that a review within a shorter period is required”.
Option 2:
Retain the existing approach, noting however the concerns outlined above at paragraphs 14 – 19.
RECOMMENDATION
That the ICC Bureau consider the options outlined above and advise whether the SCA should prepare a proposed amendment and supporting paper for consideration at the next ICC Bureau and General Meeting in March 2014.
ANNEX 2
ISSUE: ACCREDITATION
PURPOSE:
1. To brief the ICC Bureau on the how the Sub-Committee on Accreditation is currently dealing with applications for accreditation from human rights institutions that have not been established by States recognised by the United Nations.
BACKGROUND:
2. In recent years, the Sub-Committee on Accreditation has received inquiries,and applications for accreditation, from human rights institutions that have been established by:
- territories that have declared independence but have not been recognised as sovereign States by the international community, (e.g. Kosovo and Taiwan);
- self-governing and/or dependent territories of UN member States (Bermuda);
- sub-national institutions (for example Mexico City (Mexico City Human Rights Commission) and the city of Buenos Aires (Ombudsman of Buenos Aires).
3. On each occasion the Sub-Committee on Accreditation has responded to such inquiries by highlighting that in accordance with the ICC statute, accreditation by, and membership of the ICC is available only to NHRIs established by States recognised by the United Nations.
4. This approach is based on past ICC policy and practice as follows:
- in 2007 the ICC considered the meaning of the term ‘national institution’ in the context of the Paris Principles. Internal advice stated that the term ‘national institution’ should be interpreted as referring to an institution established by a member State of the United Nations;
- subsequently the ICC Bureau interpreted ‘national institutions’ to include those established by member States and those recognised by the United Nations.[1]
Continuation of this Approach
5. The Sub-Committee on Accreditation is of the view that the approach is reasonable and should be maintained. Such an approach recognises that national human rights institutions established by sovereign States:
- are distinct from provincial or municipal human rights organisations;
- have unique domestic and international mandates; and
- have specifically recognised access to, and roles in the international human rights system.
6. The SCA notes that this approach precludes membership and accreditation of human rights organisations established by non-States. However, it is of the view that this is appropriate since it avoids the potential for non-States to promote their recognition as States by the United Nations through membership and accreditation by the ICC. As members would be aware, this tactic is not uncommon.
7. In addition, ‘A’ accreditation provides NHRIs with certain participation rights in UN human rights fora. If the ICC were to accredit non-State institutions, attempts by those institutions to use their participation rights in UN human rights fora may impact on the Human Rights Council’s ongoing support for the self-accreditation process and NHRI participation rights more generally.
Participation as Observers
8. While recommending the continuation of this approach, the Sub-Committee would also like to draw the ICC Bureau’s attention to Article 38 of the ICC Statute. Article 38 provides that the Chairperson may, following consultation with members, invite “any other institution to participate in the work of the ICC as an observer”.
9. Article 38 provides the ICC with a mechanism to engage with and encourage the participation of relevant human rights and other institutions on a case by case basis. Such an approach is of particular relevance for human rights institutions from self-governing territories, whose establishment and mandates may be similar to NHRIs, but that cannot otherwise be considered to be ‘national’ human rights institutions in the context of the Paris Principles or the ICC Statute.
RECOMMENDATION
That the ICC Bureau:
- note the approach currently taken by the Sub-Committee on Accreditation; and
- consider the use of Article 38 to engage with and encourage the participation of relevant human rights and other institutions on a case by case basis.
ICC Sub-Committee on Accreditation Report – November 2013 1
[1] This would include the Palestinian Independent Human Rights Commission, which is established by a “non-Member Observer State” at the United Nations.