TWN Info Service on UN Sustainable Development (Jul21/11)
16 July 2021
Third World Network

United Nations: HRC establishes expert mechanism to examine systemic racism
Published in SUNS #9388 dated 15 July 2021

Geneva, 14 Jul (Kanaga Raja) – The UN Human Rights Council on 13 July decided to establish an international independent expert mechanism to amongst others examine systemic racism faced by Africans and people of African descent, as well as the excessive use of force and other violations of international human rights law against Africans and people of African descent by law enforcement officials.

The international independent expert mechanism is to comprise of three experts with law enforcement and human rights expertise and will have a mandate of three years.

In a resolution (A/HRC/47/L.8/Rev.1) adopted without a vote and as orally revised, the Council requested the High Commissioner for Human Rights and the international independent expert mechanism to present to the Council, on an annual basis, starting from the 51st session, their respective written reports jointly during an enhanced interactive dialogue that prioritizes the participation of directly affected individuals and communities, including victims and their families, and transmitting its annual report to the General Assembly.

In a comment issued on 13 July, Jamil Dakwar, director of the American Civil Liberties Union’s Human Rights Program, said: “We welcome the landmark resolution establishing an independent expert mechanism to globally investigate and address the scourge of systemic racism especially in the context of policing in the United States and around the world. It is regrettable that some countries, especially former colonial powers, have continued, to the last minute, their pressure to weaken the resolution.”

“Now the onus is on the Biden administration to fully cooperate with the new UN human rights body and facilitate active involvement of state and local governments. The US government must center the voices and lived painful experiences of people of African descent and families of victims of police violence,” he added.

The ACLU called on the Biden administration, as well as state and local governments, where more than 18,000 law enforcement agencies operate, to fully cooperate with the UN human rights body.

“It’s time to double our efforts to reckon with legacy of slavery and Jim Crow and take bold action to repair the damage and re-imagine public safety by shifting resources from policing institutions and re-investing in social and economic services in communities that have been harmed by systemic racism and increasingly militarized policing,” said Dakwar.

Meanwhile, in a press statement also issued on 13 July, US Secretary of State Antony J Blinken welcomed “the UN Human Rights Council’s adoption today in Geneva of a resolution to address systemic racism against Africans and people of African descent in the context of law enforcement. I look forward to engaging with the new mechanism to advance racial justice and equity.”

He said the United States intends to issue a formal, standing invitation to all UN experts who report and advise on thematic human rights issues. “As a first step, we have reached out to offer an official visit by the UN Special Rapporteur on contemporary forms of racism and the UN Special Rapporteur on minority issues,” said Blinken.

Earlier on 12 July, the UN High Commissioner for Human Rights, Ms Michelle Bachelet, had presented to the Human Rights Council her report (A/HRC/47/53) on the promotion and protection of the human rights and fundamental freedoms of Africans and of people of African descent against excessive use of force and other human rights violations by law enforcement officers.

In her statement at the Council on 12 July, Ms Bachelet said the murder of George Floyd (on 25 May 2020) was a tipping point, which shifted the world’s attention to the human rights violations routinely endured by Africans and people of African descent.

She said that her report, in conjunction with the accompanying conference room paper (A/HRC/47/CRP.1), are anchored in lived experiences.

“I met and listened to family members of people of African descent killed by law enforcement officials. Online consultations with over 340 people, mostly of African descent, were central to our analysis,” said Ms Bachelet.

These deep conversations, together with over 110 written submissions received from States and other stakeholders, shaped our analysis and recommendations for ways to achieve transformative change and end profound injustices, inflicted for generations, she added.

She said wherever data is available, the report shows that children of African descent are often subjected to racial discrimination in schools, suffer poorer educational outcomes, and at times are treated as criminals from an early age.

In some States, people of African descent are more likely to live in poverty, earn lower wages, occupy less-skilled positions, and face unequal access to adequate housing and quality health-care.

These obstacles are compounded by the insufficient participation and representation of people of African descent in decision-making and public life.

In the area of law enforcement, the High Commissioner said the report focuses on lethal incidents where there has been a strikingly consistent failure to see justice done.

It emphasizes the disproportionately adverse outcomes for people of African descent who come in contact with law enforcement. And it explains how disproportionate stops – including on the basis of racial profiling – result in disproportionate arrests and incarceration, and harsher sentencing, including disproportionate imposition of the death penalty.

The High Commissioner said her Office received information about at least 190 deaths of Africans and people of African descent at the hands of law enforcement officials, 98% of which took place in Europe, Latin America and North America.

“In addition, we closely examined seven emblematic incidents of deaths of Africans and people of African descent in contact with law enforcement officials, including George Floyd and Breonna Taylor in the United States of America; Adama Traore in France; Luana Barbosa dos Reis Santos and Joao Pedro Mattos Pinto in Brazil; Kevin Clarke in the United Kingdom; and Janner Garcia Palomino in Colombia,” she added.

Overall, despite varying legal systems, certain practices, patterns and challenges appeared similar, including the recurrence of racial bias, stereotypes and profiling, said Ms Bachelet.

“Harmful and degrading associations of Blackness with criminality appear to shape interactions of people of African descent with law enforcement and criminal justice.”

Ms Bachelet highlighted three key contexts in which police-related fatalities stood out: The policing of minor offences, traffic stops and stop-and-searches; the intervention of law enforcement officials as first responders in mental health crises; and special police operations in the context of the “war on drugs” or gang-related operations.

Many States have not put in place clear and effective laws and policies about use of force, increasing the risk of violations, she said.

“Moreover, law enforcement officers are rarely held accountable for human rights violations and crimes against persons of African descent.”

Deficient investigations; inadequate oversight, complaint and accountability mechanisms, and widespread prejudice about the presumed underlying guilt of victims of African descent are contributing factors.

Investigations, prosecutions and trials largely do not adequately consider the potential role of racial discrimination, stereotypes and biases in lethal incidents involving the police, said Ms Bachelet.

In relation to Government responses to peaceful anti-racism protests, the High Commissioner said: “We found credible allegations of unnecessary and disproportionate use of force against some protests, and differences in how racial justice protests were policed compared with other demonstrations.”

The clampdown on anti-racism protests in some countries should be seen within a broader context in which the voices of people of African descent, and people combating racism, are stifled, and human rights defenders of African descent face reprisals, including harassment, threats, criminal prosecutions, violence and killings, she added.

She said in light of these profound and wide-ranging injustices, there is an urgent need to confront the legacies of enslavement, the transatlantic slave trade, colonialism and successive racially discriminatory policies and systems, and to seek reparatory justice.

“Despite some initiatives towards truth-seeking, and limited forms of reparations – including memorialization, acknowledgments, apologies and litigation – our research could not find a single example of a State that has comprehensively reckoned with the past or accounted for its impacts on the lives of people of African descent today.”

She said that her report presents practical recommendations for four interconnected pillars of action that are essential to address systemic racism.

Firstly, States should acknowledge the systemic nature of racism, in every part of life, in order to transform the structures, institutions and behaviours that lead to direct or indirect discrimination. “Whole-of-government” and “whole-of-society” reforms should include clear, time-bound commitments monitored by independent institutions.

The collection and publication of official data disaggregated by race or ethnic origin, gender, age, or other factors is crucial.

Secondly, law enforcement officials must be held accountable for crimes and human rights violations against Africans and people of African descent.

“We also need to look deeply at policing itself, and apply alternative approaches in some situations – including in educational settings, in cases of mental health crises, in relation to migration and border management, and during protests,” said Ms Bachelet.

Policing and the criminal justice system will only regain the public’s trust if they are seen to uphold dignity and equality, and to protect and serve all members of communities. Independent oversight and complaints procedures should be created or strengthened, and reforms should restrict the use of force, and prohibit racial profiling, she added.

“A striking number of families, across multiple jurisdictions, have reported to my Office unbearable difficulties in seeking truth and justice, and there is a clear need for effective, independent mechanisms to support people affected by law enforcement violations.”

Thirdly, States should uphold the rights to freedom of expression and peaceful assembly, and protect organizers, participants, observers and journalists during anti-racism protests, as well as those who stand up against racism outside of such protests.

States should also ensure the effective participation and representation of people of African descent, in particular women and young people, at every level, including law enforcement and the criminal justice system, as well as policy-making processes.

The High Commissioner said that behind today’s systemic racism and racial violence lies the absence of formal acknowledgment of the responsibilities of States and others that engaged in or profited from enslavement, the transatlantic trade in enslaved Africans, and colonialism – as well as those who continue to profit from this legacy.

She said that the final pillar of this transformative agenda recommends that States create, reinforce and fully fund comprehensive processes – with full participation of affected communities – to share the truth about what was done, and the harms it continues to inflict.

“Establishing the truth about these legacies, and their impact today, and taking steps to address these harms through a wide range of reparations measures is crucial to healing our societies and providing justice for terrible crimes. Measures taken to address the past will transform our future.”

The High Commissioner urged all States to draw upon the great body of international obligations and commitments and to demonstrate much stronger political will to accelerate action for racial justice and equality.

RESOLUTION ON SYSTEMIC RACISM

In its resolution adopted without a vote, the Human Rights Council deplored all forms of racial discrimination, including systemic and structural racism, and its effects on Africans and on people of African descent and their families, and communities around the world.

The Council condemned the continuing racially discriminatory and violent practices perpetrated by many law enforcement officials against Africans and people of African descent, and systemic racism in the law enforcement and criminal justice systems, and underscored the importance of ensuring that such acts are not treated with impunity.

It recalled that law enforcement officials, in carrying out their duties, should apply non-violent means before resorting, when absolutely necessary, to the use of force, and that in any event all use of force should comply with the fundamental principles of legality, necessity, proportionality, precaution and non-discrimination, and that those using force should be accountable for each use of force.

The Council stressed that, where it is lawful to arrest certain participants or to disperse an assembly, such actions should comply with international law and have a basis in the domestic law provisions on the permissible use of force, and that domestic legal regimes on the use of force by law enforcement officials should be brought into line with the requirements of international law, where that is not already the case.

It recommended that domestic legal regimes on the use of force by law enforcement officials be brought into line with appropriate international standards, such as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement, and that law enforcement agencies provide law enforcement officials with appropriate human rights training to ensure that they comply with international rules and standards for law enforcement officials.

The Council urged States to seize every opportunity to advance the anti-racism agenda and to prioritize attaining racial equality and justice by accelerating action to implement the 2030 Agenda for Sustainable Development to ensure that Africans and people of African descent are not left behind.

It encouraged all States and relevant stakeholders to pay due attention to the operational guidelines on the inclusion of people of African descent in the 2030 Agenda in order to ensure that people of African descent are not left behind in the implementation of that Agenda.

The Council urged States to adopt a systemic approach to combating racial discrimination through the adoption and monitoring of whole-of-government and whole-of-society responses that are contained in comprehensive and adequately resourced national and regional action plans and that include, where necessary, special measures to secure for disadvantaged groups, notably Africans and people of African descent, the full and equal enjoyment of human rights.

It also urged States, as appropriate, to establish, strengthen, review and reinforce the effectiveness of independent national human rights institutions, where applicable, particularly on issues of racism, racial discrimination, xenophobia and related intolerance, in conformity with the Principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles), and to provide them with adequate financial resources, competence and capacity for investigation, research, education and public awareness-raising activities to combat these phenomena, including in law enforcement and criminal justice systems.

The Council decided to establish an international independent expert mechanism, comprising three experts with law enforcement and human rights expertise, to be appointed by the President of the Human Rights Council, with guidance from the United Nations High Commissioner for Human Rights in order to further transformative change for racial justice and equality in the context of law enforcement globally, especially where relating to the legacies of colonialism and the Transatlantic slave trade in enslaved Africans, and to investigate governments’ responses to peaceful anti-racism protests and all violations of international human rights law and to contribute to accountability and redress for victims.

It said that the mechanism should function in close collaboration with relevant special procedure mandate holders, including the Working Group of Experts on People of African Descent and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, also with the view to avoid duplication.

The Council also decided that the international independent expert mechanism shall have a three-year mandate, within the purview of its mandate, to advance racial justice and equality in the context of law enforcement in all parts of the world, by inter alia conducting country visits, inclusive outreach and consultations with States, directly affected individuals and communities, and other stakeholders, and taking into account an inter-sectional approach by:

(a) Examining systemic racism, including as it relates to structural and institutional racism, faced by Africans and people of African descent, the excessive use of force and other violations of international human rights law against Africans and people of African descent by law enforcement officials, including with regard to patterns, policies, processes and specific incidents, such as those identified in the report of the High Commissioner and relevant conference room paper;

(b) Examining the root causes of systemic racism in law enforcement and the criminal justice system, the excessive use of force, racial profiling and other human rights violations by law enforcement officials against Africans and people of African descent, and how domestic law, policy and practices may lead to disproportionate and widespread interaction between law enforcement officers and Africans and people of African descent;

(c) Making recommendations regarding how domestic legal regimes on the use of force by law enforcement officials can be brought into line with the applicable human rights standards, such as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement, and ensure that law enforcement officials receive appropriate human rights training to ensure that they comply with obligations under international law;

(d) Making recommendations on the collection and publication of data, with strict safeguards and in line with international law, disaggregated by victims’ race or ethnic origin, on deaths and serious injuries by law enforcement officials and related prosecutions and convictions, as well as any disciplinary actions, to drive and assess responses to systemic racism in the area of law enforcement and the criminal justice system;

(e) Examining any nexus between supremacist movements and actors within law enforcement and the criminal justice system;

(f) Making recommendations with regard to addressing systemic racism, in law enforcement and the criminal justice systems, closing trust deficits, strengthening institutional oversight, adopting alternative and complementary methods to policing and the use of force, and encouraging stocktaking of lessons learned;

(g) Making recommendations on the concrete steps needed to ensure access to justice, accountability and redress for excessive use of force and other human rights violations by law enforcement officials against Africans and people of African descent, including independent and well-resourced mechanisms to support victims of human rights violations by law enforcement officials, their families and communities;

(h) Monitoring the implementation of recommendations on ending impunity for violations by law enforcement officials emanating from the report of the High Commissioner, and identifying obstacles to their full implementation;

(i) Coordinating its work and further strengthening its participation, engagement and cooperation, as appropriate, with all relevant United Nations mechanisms, bodies and processes, including the United Nations Office on Drugs and Crime and the United Nations Congress on Crime Prevention and Criminal Justice regional human rights mechanisms and national human rights institutions.

The Council called upon all States and other relevant stakeholders to cooperate fully with the international independent expert mechanism towards the effective fulfilment of its mandate and, in particular, to provide it with any information and documentation it may require, as well as any other forms of assistance pertaining to its mandate.

It requested the Secretary-General to provide the international independent expert mechanism, through the Office of the United Nations High Commissioner for Human Rights, with full administrative, technical and logistical support and the resources necessary to enable it to carry out its mandate.

The Council also requested the High Commissioner to enhance and broaden monitoring by the Office of the High Commissioner, including through its field presences, with the assistance of relevant special procedure mandate holders and relevant United Nations agencies, in order to continue to report on systemic racism, violations of international human rights law against Africans and people of African descent by law enforcement agencies, to contribute to accountability and redress and to take further action globally towards Transformative Change for Racial Justice and Equality, including by providing support for and strengthening assistance to States and other stakeholders, particularly people of African descent and their organizations, and by giving further visibility to this work.

It called upon all States and all relevant stakeholders to ensure the accountability of law enforcement officials for human rights violations and crimes against Africans and people of African descent, to close trust deficits and to strengthen institutional oversight.

The Council further called upon all States and all relevant stakeholders to ensure that Africans and people of African descent and those who stand up against racism are protected, that their voices are heard and that their concerns are acted upon.