By The Rwandan Analyst
United Nations member countries offered strong criticism and scores of recommendations addressing Rwanda’s human rights record during the country’s Universal Periodic Review (UPR) at the Human Rights Council in Geneva on January 25, 2021. During the review, countries across all regions called on Rwanda to end torture and ill-treatment, and investigate cases of extrajudicial killings, enforced disappearances, arbitrary detention, and deaths in custody. Established in 2006, the UPR involves a comprehensive review of the human rights records of all UN member states by other members in a rotation every five years. Local and international organizations, as well as the country under review, can contribute reports to inform the review process. Following each review, a group of three countries collaborates with the country under review and the Office of the UN High Commissioner for Human Rights to produce an “outcome report” that includes the recommendations and the country’s responses. The Human Rights Council will adopt the outcome report at its June session. The present article intends to assess the veracity of statements reported in UPR by Rwanda in terns of compliance with human rights standards.
The United Kingdom welcomes Rwanda’s engagement with the UPR, including collaboration between the Government and civil society on human rights. The UK reiterates its commitment to work constructively with Rwanda to support UPR implementation. The UK is pleased that Rwanda fully supports our recommendation to protect and enable journalists to work freely, without fear of retribution, and ensure that State authorities comply with the access to information law. This is an important step to promote freedom of speech, including allowing space for critical voices.
We regret that Rwanda did not support our recommendation, which was also made by other States, to conduct transparent, credible and independent investigations into allegations of human rights violations including deaths in custody and torture.
We welcome that Rwanda accepted recommendations from other countries on combatting human trafficking, but we were disappointed that Rwanda did not support the UK recommendation to screen, identify and provide support to trafficking victims, including those held in Government transit centres. In recognising the progress made by Rwanda, the UK encourages Rwanda to submit an optional mid-term report to provide an update on implementation of recommendations, between reviews.
Even if the UPR is a commendable mechanism to monitor human rights, a series of shortcomings do not fail to disrupt its process
The legal issues
The improvement on the ground in terms of human rights enjoyment has been lacking despite written conventions and treaties. Since the first cycle of the UPR in 2008, States have received recommendations which range from abiding by the fundamental principles of public international law as stipulated in the article 1 of the Charter of United Nations, to the implementing and protecting their human rights obligations enshrined in different international human rights documents such as the UDHR, ICCPR, ICESCR, the Convention on Enforced Disappearances and others. Despite this, the lack of improvement has been apparent simply because legal challenges still exist in implementing those conventions and treaties. The fact that the outcomes of the Universal Periodic Review and treaty bodies are not legally binding is one of the challenges that this thesis seeks to address. The UPR seems a political solution yet it addresses legal challenges and this thesis is of the view that unless the UPR outcomes become legally binding to States, it will have no impact in terms of international legal protection of human rights. The improvement on the ground in terms of human rights enjoyment has been lacking despite written conventions and treaties. Since the first cycle of the UPR in 2008, States have received recommendations which range from abiding by the fundamental principles of public international law as stipulated in the article 1 of the Charter of United Nations, to the implementing and protecting their human rights obligations enshrined in different international human rights documents such as the UDHR, ICCPR, ICESCR, the Convention on Enforced Disappearances and others. Despite this, the lack of improvement has been apparent simply because legal challenges still exist in implementing those conventions and treaties. The fact that the outcomes of the Universal Periodic Review and treaty bodies are not legally binding is one of the challenges that this article seeks to analyse. The UPR seems a political solution yet it addresses legal challenges and this article is of the view that unless the UPR outcomes become legally binding to States, it will have no impact in terms of international legal protection of human rights.
Weaknesses of the review
Even if the UPR recorded tangible outcomes which allowed the HRC to fulfill its mandate, a series of hindrances are still preventing the process to be efficient or impacts on its efficiency. Thus, this section points at some of those factors which weaken the UPR process.
The States under review use the most diverse strategies to dismiss the criticisms directed against them. Sometimes, delicate questions are simply ignored. Another strategy consists of accepting long lists of recommendations in a soft form so that little substance can be identified the effect of which might be measurable in concrete terms. Thus, it may be contended that a high percentage of the recommendations made was accepted, without any real change likely to occur. It is also possible to respond in a clever manner so as to create an impression which on closer examination is reduced to more modest dimensions. Some other governments admit without any trick that the conditions in their countries leave much to be desired and fall short of the requirements of the obligations they have undertaken. Such a strategy presupposes a great deal of self-awareness and courage. Such exercises in accuracy and honesty cannot fail to impress the governmental actors actively involved in the review process. However, the fact that a country can accept or reject a recommendation is a major weakness of this UPR mechanism.
-Non binding recommendations
The major weakness of the UPR mechanism is that its recommendations are not legally binding. In other words, no country can be held accountable for not implementing a recommendation it has accepted. From a legal perspective the end result appears to be poor. Indeed, it is the State under review which has the last word. It is not even confronted with a collective opinion of the HRC. As emphasized again in the final clause of the WG reports: all conclusions and/or recommendations contained in the present report reflect the position of the submitting State and/or the State under review thereon.
-Absence of mechanism for implementation
In spite of the fact that the proposals are the principal result of the UPR and must be executed by the State under audit, so far there is no system to quantify the usage of the UPR suggestions which could undermine the UPR procedure. As the next cycle is drawing nearer, by what method will the HRC survey the level and nature of the States’ collaboration with the UPR and their ability to roll out positive improvements and changes in human rights security? Nonattendance of clear and target evaluation strategies will make the future cycle less proficient since the general thought of the UPR component lies in the execution of suggestions. On the off chance that powerful follow up pointers are not created, there is a genuine risk that the UPR activity will lose its reliability.
-Absence of adequate data
The collection of data as a feature of the UPR instrument also are not liberated from inconvenience as some of them are not identifying with the issues of human rights and are without the advantage of investigation and setting. The requirement for an autonomous certainty discovering component on explicit points in the Universal Periodic Review process is underscored because of the issue of data accessibility and because of the way that the arrangement body individuals may not pose inquiries of themes which they are ignorant of and may just recreate the data that are as of now gave in the State report or the data from other UN bodies or documentation put together by the NGOs.
Since the UPR intelligent exchange is essentially directed on an intergovernmental premise, there is an unmistakable risk that the procedure turns out to be excessively politicized. In various cases, governments have had the option to maintain a strategic distance from basic evaluations by mobilizing the help of “companions” anxious to commend their human rights record without dedicating any consideration regarding the deficiencies that exist in regards to human rights in all States.
-Absence of corrective assents and excess of void talk
In the same way as other components inside the UN framework, the UPR needs corrective endorses in instances of resistance or non-execution. The suggestions are nonbinding and after the conversations and reports in Geneva, the State under Audit is allowed to execute what it sees fit. In spite of the fact that nations must report back on progress, either through intentional mid-term reports or updates during their second and consequent patterns of audit, there are scarcely any implications for insufficient consistence. Or maybe, the UPR works as an agreeable and discourse focused component that is non-ill-disposed in nature.
Rwandan case: a hiatus between the reports and the field reality
Following each review, a group of three countries collaborates with the country under review and the Office of the UN High Commissioner for Human Rights to produce an “outcome report” that includes the recommendations and the country’s responses. The Human Rights Council will adopt the outcome report at its June session.
During its January review, Rwanda received 284 recommendations from 99 countries. It accepted 160 recommendations, noted 75, and stated that an additional 49 did not enjoy their support. Rwanda should immediately act on all substantive recommendations to improve its human rights record, and UN experts, agencies, and member states should continue pressing Rwanda to halt violations.
Human Rights Watch made a submission for the current review, which examined the human rights situation in Rwanda since 2015 and the government’s implementation of the recommendations it received during its previous review.
In 2015, the government argued that many of the recommendations it received – some calling for key reforms or investigations into, and accountability for, serious rights violations – had been partially or fully carried out. The government also claimed, with a blanket statement, that several others were “incompatible with [Rwanda’s] domestic law and constitutional obligations,” including a recommendation calling on Rwanda to enact specific laws and policies to protect the work of human rights defenders. However, Rwanda is obliged to comply with its international law obligations and is prohibited from arguing that it is unable to do so because its domestic law is inconsistent with such obligations. The government responded to recommendations to ratify the International Convention for the Protection of All Persons from Enforced Disappearance by stating that the ratification of international instruments can only take place after the consultation and approval of the Parliament of Rwanda. To Human Rights Watch’s best knowledge, no such process has taken place.
Between 2010 and 2017, there was noted that Rwanda’s military frequently arbitrarily detained and tortured people, beating them, asphyxiating them, using electric shocks, and staging mock executions in military camps around Kigali and in the northwest. Most of the detainees were forcibly disappeared and held incommunicado for months on end in deplorable conditions. During the January 25 review, the Rwandan delegation dismissed allegations of torture and unlawful detention in unofficial detention facilities.
During Rwanda’s 2021 review, many countries reiterated their recommendation to Rwanda to ratify the Convention against Enforced Disappearances and the Rome Statute to become a party to the International Criminal Court. Several also urged Rwanda to allow the UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment to resume its visits. In 2017, the subcommittee suspended and nine months later cancelled its state visit to Rwanda, citing obstruction from the government and fear of reprisals against interviewees. The 2018 cancellation remains the only time the subcommittee has to stop a state visit short of its completion.
Even in cases in which Rwanda accepted recommendations in 2015, it did not necessarily lead to concrete human rights improvements, Human Rights Watch said. For example, Rwanda committed to continue efforts to protect children in difficult circumstances, such as street children, and to pass further legislation to regulate transit and “rehabilitation” centers. In its most recent submission to the Human Rights Council, Rwanda claimed that the issue was addressed through the establishment of a National Rehabilitation Service in 2017 and that 4,416 children have been through this rehabilitation process.
However, in January 2020 that, under the new legislation, children accused of being “beggars,” “vagrants, ” or “delinquents” are effectively treated as criminals and are likely to be subjected to ill-treatment. They are arbitrarily arrested and detained in transit or rehabilitation centres in appalling conditions, without due process or judicial oversight, in violation of regional and international standards.
Lies do not last. By publishing their UPR most of countries including Rwanda tend to report only favorable statements which are often betrayed by what really occurs on the field and this discrepancy is quickly detected thanks to the progress of communication tools and the presence of foreign observers in the country. Although they signed and even ratified the different covenants relating to human rights, most of States are still reluctant on their effective implementation. Among the factors of this apparent denial prevails the fact that the international law is conventional and its coercive force is not always guaranteed. The strong criticism of Rwanda from countries across the world shows the international community’s concern about the human rights crisis in Rwanda, as underlined above. It seems therefore important for these countries to follow up with the Rwandan government directly to press it to take concrete measures to adopt their recommendations.