The United Nations Human Rights Council will soon choose five new experts to monitor various human-rights topics, with nominees put forth by the council’s president.
One top candidate, on torture, has stirred up controversy, and recently, his candidacy was sidelined for the second-top candidate in an unusual decision by the council president.
Special procedures, as they are called in UN language, are independent human-rights experts who work voluntarily on behalf of the UN to investigate allegations of abuse. This system was famously described as the “crown jewel” of the UN human-rights apparatus by former Secretary-General Kofi Annan.
Five vacant roles are open for experts on internally displaced persons, torture and Iran; on violence and sexual orientation; and to join the working group on arbitrary detention. Three candidates for each vacancy have been shortlisted in order of preference by a selection committee of ambassadors, from which the president nominates.
In his letter to the council on Aug. 30, President Choi Kyonglim of South Korea endorsed all but one of the selection committee’s preferred choices. For the post of torture expert, whose full title is Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, he nominated Nils Melzer of Switzerland, second on the shortlist, bypassing the leading candidate in a rare move, specialists said.
The committee’s first choice was Karim Khan of Britain, with Felice Gaer of the United States in third. Khan’s ranking had raised eyebrows in the close circle of human-rights specialists, given his recent representation of a Kenyan official accused of crimes against humanity. His candidacy also called into question the impartiality of the appointment process.
Rolando Gómez, a spokesman for the Office of the UN High Commissioner for Human Rights, said in a telephone interview that it was the president’s prerogative to select the candidate whom he considers best suited, based on consultations with a wide range of people. Although it is not certain that the president’s nominees will be approved by the council, it is extremely rare for the council to reject them, Gómez said.
The final appointments are scheduled for Sept. 30.
Melzer, the nominee for the torture mandate, is an academic who holds the human-rights chair at the Geneva Academy of International Humanitarian Law and Human Rights. He is an expert in international law governing the use of force, and has been a delegate for the International Committee of the Red Cross in conflict areas, according to the selection committee.
Khan, the controversial candidate, is a lawyer who specializes in international criminal and human-rights law. He has “wide experience in examining and investigating numerous cases of serious allegations of human rights violations,” according to the selection committee, and is a Queen’s Counsel, an honorary appointment in Britain reserved for eminent lawyers.
Khan has worked in the prosecutor’s office of the international criminal tribunals for the former Yugoslavia and Rwanda, two courts created to try perpetrators of grave crimes in the Yugoslav wars and Rwandan genocide of the 1990s. He has also represented victims in the Extraordinary Chambers of the Courts of Cambodia formed to prosecute culprits of the Cambodian genocide of the late 1970s.
Khan also has a rich history of defending suspects of mass atrocity crimes. His current clients include William S. Ruto, deputy president of Kenya, who until April was on trial at the International Criminal Court in The Hague, charged with crimes against humanity. Khan has also worked on the defense of Jean-Pierre Bemba, a former vice president of the Democratic Republic of the Congo. In June, Bemba was found guilty by the court of war crimes and crimes against humanity.
One academic critic, based in Britain, who spoke on condition of anonymity, said that Khan had not showed enough dedication to protecting victims, given his defense of alleged criminals. This work, the person said, could clash with Khan’s role as special rapporteur if he had been nominated by the council president, should accusations be made against Ruto or other potential clients of his. (The Ruto case was vacated because of witness interference, but could be reopened if new evidence surfaces.)
In his application for the UN role, Khan wrote that “having acted for all sides in cases where torture is alleged, not only helps demonstrate my independence and ability to be impartial, but I believe that it can lend additional credibility to my role as Special Rapporteur.”
The case involving Ruto was deeply marred by witness intimidation, according to Fatou Bensouda, the chief prosecutor of the International Criminal Court, and judges who heard the case. Fergal Gaynor, who represents victims in the court’s case against Uhuru M. Kenyatta, the president of Kenya, has also questioned the extent of Khan’s commitment to justice for victims of violence.
“Bribery and intimidation of witnesses can and does collapse legitimate cases,” he said. “It is fair to question whether Mr. Khan appreciates how interference with witnesses can completely deprive torture victims of the ability to know the truth about the crimes committed against them, to have the wrongfulness of the torture publicly acknowledged, and to receive fair compensation for that torture.”
In an interview in 2014, Khan said of witness problems in the case, “I’m not sure witnesses have been and are being intimidated in this case. As I said, I have prosecuted and defended and represented the victims, and every single case I’ve been involved in has been headlined by ‘This is unprecedented witness intimidation’ and ‘unprecedented’ this and that.”
John Washburn, convener of the American Non-Governmental Organizations Coalition for the International Criminal Court, based at Columbia University, said the issue was “whether Khan’s actions as Ruto’s defense counsel displayed values and judgments that reflect on his suitability as rapporteur.”
The critic in Britain who spoke on background also said it was regretful that Gaer, the shortlisted candidate from the US, ended up in third place, done possibly to appease experts by having her listed but making her appointment nearly impossible.
Gaer is director of the Jacob Blaustein Institute for the Advancement of Human Rights, an advocacy organization in New York. She is also vice-chair of the UN Committee Against Torture, on which she has served since 2000. Some human-rights observers argue that the position makes her the most-qualified candidate. She is also a former chair of the United States Commission on Religious Freedom, which documents and promotes religious freedom internationally.
In that role, Gaer testified before US Congress on the situation of human rights in Egypt, which had been placed on the commission’s “watch list.” Egypt is a current member of the selection committee of ambassadors recommending special rapporteur nominees, raising more eyebrows about the committee’s impartiality.
No woman has ever held the post of special rapporteur on torture, a fact that has provoked consternation among some specialists, who have asked to remain anonymous because they fear reprisal for seeming to criticize.
The last thematic report of the current torture rapporteur, Juan E. Mendéz of Argentina, focused on gender perspectives on torture, identifying the “unique experience” of women, girls and LGBT persons.
The controversy surrounding the respective positions of Khan and Gaer in the selection committee’s list are reminiscent of earlier criticism against states’ handling of special procedures. In 2008, a coalition of nongovernmental organizations said that while rapporteurs have made pivotal contributions to reducing torture and other ill treatment, the “mechanism is often subjected to attempts by governments to undermine its valuable and necessary work.”
For example, in 2007 the Human Rights Council introduced a Code of Conduct for special procedures to curb their independence. More recently, in June several members of the council tried unsuccessfully to block the creation of a new mandate on sexual orientation and gender identity.
According to Ted Piccone, a senior fellow at the Brookings Institution, the success that special procedures have enjoyed makes some countries uncomfortable, who are loath to be scrutinized for their practices and try to rein in the experts. The real problem, Piccone said, is states’ lack of cooperation with the special procedures, delaying or denying requests for visits or other forms of assistance and communication.
Yet, he added, “the system has gotten much better, it’s pulling in more qualified candidates and it’s more transparent.”