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  This module is a resource for lecturers  

 

Topic one - Introducing the United Nations standards and norms on crime prevention and criminal justice vis-à-vis international law

 

To comprehend the nature and standing of the UN standards and norms on crime prevention and criminal justice, we need to first understand the importance of normative documents as part of the broader system of international law.

As Shelton (2009) argues, international law is a consensual system, consisting of norms by which States, in sovereign equality, freely accept to govern themselves. International law is thus created by States. The primary sources of law, set forth for the purpose of resolving inter-state disputes, are identified in the Statute of the International Court of Justice (ICJ), an Annex to the United Nations Charter adopted in 1945. Article 38 defines the sources of law that the ICJ shall apply to settle disputes:

  • international conventions, whether general or particular, establishing rules expressly recognized by the contesting States
  • international custom, as evidence of a general practice accepted as law
  • the general principles of law recognized by civilized nations
  • judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law

International conventions, or treaties, are the most straightforward instruments used by States to consent to limitations of their sovereignty. They become legally binding after a process of signature and domestic ratification. In addition to these sources, vast bodies of normative statements have been adopted by States in non-binding political instruments, mostly by intergovernmental bodies, such as ECOSOC, with secretariat support from relevant international organizations. These include declarations, resolutions, and programmes of action, sets of guidelines, charters, etc. The authority of these instruments derives from the international agreement that they enshrine principles of enduring significance globally. For example, a 1962 memorandum of the United Nations Office of Legal Affairs called a declaration “a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated” (ECOSOC, 1962).

 

Binding legal instruments

International law generally concerns States and, as far as treaties go, States that have signed and ratified and acceded to the binding obligations of treaty (though a process of domestic political and legal ratification and incorporation). Since the establishment of the UN, in 1945, more than 500 multilateral treaties have been deposited with the UN Secretary-General. These treaties include the nine core international human rights instruments:

In addition, there are a broad range of universal human rights instruments that enshrine rights relevant to freedom of association, the prevention of discrimination, and the principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crime against humanity. International instruments in these fields, and in others, form part of the broader international human rights framework within which the UN standards and norms on crime prevention and criminal justice operate.

It should also be mentioned that just as the standards and norms on crime prevention and criminal justice build on universal human rights law, including the Universal Declaration on Human Rights (1948) and the nine core human rights instruments listed above, so too do they bear a strong link to international criminal law. A significant proportion of the UN standards and norms have been formalised in binding international law for States parties to the United Nations Convention against Corruption (UNCAC) (2004) and the United Nations Convention against Transnational Organized Crime (UNTOC) (2004), as well as the Rome Statute of the International Criminal Court (1998). For example, articles 66, 67, and 68 of the Rome Statute (1998) pertain, respectively, to the presumption of innocence, the rights of the accused, and the protection of victims and witnesses and their participation in proceedings.

 

Non-binding normative instruments

The UN standards and norms on crime prevention and criminal justice are authoritative normative instruments. While lacking direct legal binding force, these normative instruments reflect important political commitments made by States. This means that States are bound in a common aspiration to uphold minimum standards and enact certain safeguards. The consequence for breaches of these standards is a loss of standing and reputation at the international level.

Non-binding normative instruments can be categorized as either primary or secondary texts.

Primary normative instruments

Primary non-binding normative instruments comprise those texts (not adopted in treaty form) that are addressed to the international community as a whole or to the entire membership of the adopting institution or organization. Such instruments may declare new norms, often as an intended precursor to adoption of a later treaty, or they may reaffirm or further elaborate norms previously set forth in binding or non-binding texts. The United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and Treatment of Offenders, 1955, and approved by the United Nations Economic and Social Council in 1957, is an example of a primary declarative text.

In the field of human rights, regional and global treaties almost without exception invoke the Universal Declaration of Human Rights (1948) as a normative precursor. The Declaration itself states by its own terms that it was intended as “a common standard of achievement” that could lead to binding agreement. Nearly all recent multilateral conventions at the global level have been preceded by the adoption of a non-binding declaration. In this vein, the issuance of non-binding texts often initiates a process of building consensus towards the binding obligations needed to resolve a new or enduring problem. Non-binding instruments are particularly useful in addressing new topics of regulation that require innovative means of rule-making. For example, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975) is a precursor to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).

Secondary normative instruments

Secondary normative texts include the recommendations and general comments of international supervisory organs, the jurisprudence of courts and commissions, decisions of special rapporteurs and other ad hoc bodies, and the resolutions of political organs of international organizations applying primary norms. Most of these secondary normative texts are pronounced by institutions or committees whose existence and jurisdiction derives from a treaty and who apply norms contained in the same treaty. These texts often serve to affirm and elaborate on legally-binding provisions of treaty.

Example: General Comments of the Committee on the Rights of the Child

General Comment No. 10 (2007) of the Committee on the Rights of the Child elaborates on Children’s Rights in Juvenile Justice. The provisions of this document are consistent with the legally binding obligations enumerated in the Convention of the Rights of the Child (CRC), and provide States parties to the CRC with additional guidance about the development and implementation of a comprehensive specialised child justice system (as required by the CRC). The Committee on the Rights of the Child elaborates on all aspects of child justice, ranging from prevention through to the imposition of measures, and affirms the basis for these principles in human rights law (CRC, ICCPR). These principles include:

  • Non-discrimination (CRC, 1989, Article 2)
  • Best Interests of the Child (CRC, 1989, Article 3)
  • The right to life, survival and development (CRC, 1989, Article 6)
  • The right to be heard (CRC, 1989, Article 12)
  • Treatment consistent with a child’s sense of dignity and worth (CRC, 1989, Article 40(1))
(Committee on the Rights of the Child, General Comment No. 10, 2007, paras. 6-14)

Binding international human rights law, such as the CRC (1989), and non-binding norms, such as those articulated in General Comment 10 on Children’s Rights in Juvenile Justice (2007), are mutually reinforcing. The legal provisions in binding treaties are given additional significance, internationally, with each iteration and elaboration. General Comment 10, on Children’s Rights in Juvenile Justice, was adopted in 2007. In 2019, the Committee on the Rights of the Child concluded a process of revising this General Comment, more than a decade after it was adopted. This renewed focus on child justice, by the 18 independent experts that comprise the Committee on the Rights of the Child, signifies an ongoing international commitment to ensuring the rights of children in conflict with the law. The revised General Comment (General Comment No. 24. 2019) forms an integral part of the international normative framework that guides the development and implementation of specialised child justice systems to uphold the rights enumerated in both the CRC and in relevant UN standards and norms. Among the standards and norms relevant to justice for children are:

In addition to the emphasis that accrues with the reiteration of these norms by authoritative bodies, the iterative character of normative work also provides the opportunity for the elaboration of internationally authoritative guidance about the application of these norms to contemporary challenges and contexts. This is the case, for example, with the General Comment (2019) that the Committee on the Rights of the Child is currently drafting on children’s rights in relation to the digital environment. Adopted in 1989, the CRC does not explicate the ways in which children’s rights should be upheld in the digital age. While it is important to note that the rights enshrined in the CRC are all relevant in the digital age, (the right to freedom from an arbitrary interference with privacy, for example), the revised General Comment, which comes 30 years after the adoption of the CRC, provides the Committee on the Rights of the Child with the opportunity to draft digitally relevant guidance to assist Member States in their efforts to respect, protect, and fulfil children’s rights in the context of digital technology. In this sense, secondary normative texts such as General Comments play a crucial role in ensuring that the legally binding treaties, such as the CRC, remain living instruments that are relevant in contemporary contexts.

 

United Nations Treaty Monitoring Bodies

The Office of the High Commissioner for Human Rights (OHCHR) works to offer expertise and support to the different human rights monitoring mechanisms in the UN system, including UN Charter-based bodies, such as the Human Rights Council, and bodies created under international human rights treaties and comprised of independent experts mandated to monitor States parties' compliance with their treaty obligations.

 

The Human Rights Council and Special Procedures

Separate to the UN standards and norms on crime prevention and criminal justice, the Human Rights Council plays an important role with respect to both normative guidance and monitoring state practice, primarily through the Universal Periodic Review (UPR) and Special Procedures. While the collective scope of these mechanisms is broad, and certainly broader than crime prevention and criminal justice, these mechanisms regularly focus on issues relevant to the functioning of the criminal justice system.

The Human Rights Council

The Human Rights Council, which replaced the Commission on Human Rights, held its first meeting on 19 June 2006. Meeting in Geneva for ten weeks each year, the Human Rights Council is an intergovernmental body composed of 47 elected UN Member States who serve for an initial period of 3 years and cannot be elected for more than two consecutive terms. The Human Rights Council is a primarily political body with a comprehensive human rights mandate, and a forum empowered to: prevent abuses, inequity, and discrimination; protect the most vulnerable and; by monitoring State activities, provide accountability mechanisms for breaches of internationally binding human rights law. One of the most important tasks entrusted to the Commission/Council is the elaboration of human rights standards. In 1948, it concluded work on the landmark Universal Declaration of Human Rights. Since then it has developed standards relating, inter alia, to the right to development, civil and political rights, economic, social and cultural rights, the elimination of racial discrimination, torture, the rights of the child and the rights of human rights defenders.

In 2007, the Council adopted Resolution 5/1 entitled “Institution-Building of the United Nations Human Rights Council” by which a new complaints procedure was established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances. The complaints procedure addresses communications submitted by individuals, groups, or non-governmental organizations that claim to be victims of human rights violations or that have direct, reliable knowledge of such violations.

The Universal Periodic Review (UPR) process, which involves a review of the human rights records of all UN Member States, is also a function of the Council. The UPR is a State-driven process, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations (a ‘country report’). A civil society ‘shadow report’ is also considered by the Council and, additionally, Member States engage in a peer review process to encourage the reporting State to take practical steps to improve human rights compliance.

Through this process, Member States regularly identify measures that States could implement to better uphold human rights, including the rights of individuals involved in the criminal justice system. For example, in the second cycle UPR for Myanmar, UN Member States posed questions, in advance, to ask what measures Myanmar might put in place to ensure the protection of minority groups, and “to address the practise of arbitrary arrest and detention of human rights defenders and civil society activists” (Advance Questions to Myanmar, 2015, UPR). Further, in the third cycle UPR for Norway, UN Member States posed questions pertinent to the treatment of prisoners, with specific interest in what measures Norway would take to end the use of solitary confinement in prisons, and what specific measures would be put in place to address the mental health needs of prisoners (Advance Questions to Norway, 2019, UPR). The third cycle UPR for Iran included attention to questions, from UN Member States, about what plans Iran might have to reduce or abolish the death penalty, particularly for children (Advance Questions to Iran, 2019, UPR).

Special procedures

In addition to the above, the Commission on Human Rights/Human Rights Council established the so-called special procedures, a general name given to the mechanisms designed to address either country specific situations or thematic issues in all parts of the world.

Special procedures refers to the independent experts, or groups of experts, that work on a voluntary basis, appointed by the Human Rights Council, to advise on human rights issues. The term encompasses the functions of “special rapporteur” or “independent expert”, and “working group”. The mandates for Special Procedures call on the appointed experts to examine, monitor, advise and publicly report on human rights situations in specific countries or territories (country mandates), or on human rights issues of particular concern worldwide (thematic mandates). As of February 2020 there are 44 thematic and 12 country mandates. Special procedures undertake country visits; act on individual cases and concerns of a broader, structural nature by sending communications to States and others in which they bring alleged violations or abuses to their attention; conduct thematic studies and convene expert consultations, contribute to the development of international human rights standards, engage in advocacy, raise public awareness, and provide advice for technical cooperation.

There are several special procedures with crime prevention and criminal justice in focus. These include:

 

Example: Country and Thematic Reports of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

The Convention Against Torture (CAT) (1984) requires that States parties enact statutory prohibitions against all forms of torture, and hold perpetrators of torture to account. These are fundamental components of the rule of law, ensuring that all within the jurisdiction of the State party are accountable to the law. The CAT also affirms equal human dignity, and the fundamental importance of the right to freedom from inhuman or degrading treatment. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. Each State party shall make these offences punishable by appropriate penalties which take into account their grave nature (CAT, 1984, Article 4(1)).

Part of the mandate of the Special Rapporteur on Torture is to conduct fact finding visits to countries, including inspections of centres in which persons are deprived of liberty. In addition, the Special Rapporteur provides thematic reports, such as the recent report on the connection between corruption and torture or ill-treatment. In that report, the Special Rapporteur identifies the need for systemic reform to prevent torture and ill-treatment:

“When examining the correlation between corruption and torture or ill-treatment, it is of utmost importance to understand the predominantly structural and systemic nature of both forms of abuse. Contrary to common misperceptions, both corruption and torture or ill-treatment are rarely isolated in a few “bad apples” but, figuratively speaking, tend to extend to “rotten branches” or even “rotten orchards”. For example, in the context of policing, the practice of corruption and of torture or ill-treatment typically goes beyond individual officers and extends to their units or even entire police departments, often exacerbated by collusion at worst or acquiescence at best on the part of the judiciary and open or implicit complacency on the part of policymakers. Overall, the resort by individual officials to corruption or to torture and ill-treatment is more often the result of their professional environment than of their personal character” (Human Rights Council, 2019, para. 21).

In this same report, the Special Rapporteur on Torture observes that “environments where the risk of torture and ill-treatment is highest [include] places of detention and other institutionalization, in extra-custodial police practices and across various stages of irregular migrants’ journeys” (Human Rights Council, 2019, para. 15). These observations, based on a range of country visits, and 136 communications on behalf of individuals exposed to torture or ill-treatment, clarify the importance of clear minimum standards of treatment for individuals in places of detention. Further information on the role of international standards of conduct in policing and judicial practice is available in Modules 5 and 14 of the E4J University Module Series on Crime Prevention and Criminal Justice. Further information on the importance of human rights in redressing corruption can be found in Module 7 of the E4J University Module Series on Anti-Corruption.

This is where the UN standards and norms play an important role in complementing and further elaborating upon international legal provisions. Relevant to this particular mandate, on torture, the standards and norms clearly explicate the internationally agreed rules and principles that apply to the conduct of criminal justice actors in settings where individuals are deprived of their liberty (for example, police and prison officials). Among the UN standards and norms that proscribe torture and ill-treatment, including in places of detention are: the United Nations Standard Minimum Rules of the Treatment of Prisoners (the Nelson Mandela Rules) (2015); the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) (2010); and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990). In recognition of the risk of torture or ill-treatment in police custody, standards for police conduct (including use of force) are elaborated in the following international texts: the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990); and the Code of Conduct for Law Enforcement Officials (1979). The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), for example, specifies the following restrictions on use of force with respect to persons deprived of liberty:

  • Law enforcement officials, in their relations with persons in custody or detention, shall not use force, except when strictly necessary for the maintenance of security and order within the institution, or when personal safety is threatened.
  • Law enforcement officials, in their relations with persons in custody or detention, shall not use firearms, except in self-defence or in the defence of others against the immediate threat of death or serious injury, or when strictly necessary to prevent the escape of a person in custody or detention presenting the danger referred to in Principle 9. (Principles 15, 16)

There is a dual efficacy in the internationally codified legal prohibition against torture and ill-treatment, and the elaboration of principles such as these about the use of force. The first is that the authority of the prohibition against torture provides a clear benchmark against which breaches can be recorded, including through monitoring mechanisms such as the Special Procedure mandate of the Special Rapporteur on Torture. A second, and more preventive application of these legal and normative prohibition against torture, ill treatment, and excessive use of force, is that this provides a benchmark for the elaboration of a range of technical assistance and training tools that can be used by States to build the capacity of law enforcement and prison officers, to redress cultures of impunity or corruption that might result in violence against individuals deprived of liberty. For example, the Resource Book on Use of Force and Firearms in Law Enforcement offers “technical guidance for drafting domestic laws, policies on the use of force and firearms in law enforcement” (UNODC, 2017, p 3).

Practical tools of this kind fulfil an important function, by providing States with actionable strategies to assist with their efforts to uphold both their obligations pursuant to binding international human rights law, and the safeguards and minimum standards elaborated in the UN standards and norms on crime prevention and criminal justice. Further details on the use of force are available in Module 4 on The Use of Force and Firearms of the E4J University Module Series on Crime Prevention and Criminal Justice.

 

Treaty Monitoring Bodies

In addition to UN Charter-based instruments and bodies, there are nine core international human rights treaties, with respective monitoring bodies. Since the adoption of the Universal Declaration of Human Rights in 1948, all UN Member States have ratified at least one core international human rights treaty and 80 percent have ratified four or more (as of February 2020) (United Nations).

In general terms, treaty monitoring bodies comprise independent experts from around the world, who monitor the implementation, by States parties, of the specific treaty under which the respective committee is prescribed. While reporting and review mechanisms differ slightly for each of the treaty monitoring bodies, States parties are generally required to provide the treaty monitoring body with periodic reports that describe the measures that the State has taken to uphold its obligations pursuant to the relevant treaty. An important mechanism to ensure that the voice of civil society is heard, is that many treaty monitoring bodies also receive a civil society report (a shadow report) in which civil society organizations with a mandate relevant to the specific treaty also provide information about the State’s implementation of its treaty obligations (and any areas in which improvement or reform is required). Having considered both reports, the relevant treaty monitoring body holds a hearing with a delegation from the Member States after which it formulates so-called concluding observations with recommendations about measures to improve the State’s implementation of its obligations pursuant to the relevant treaty. States parties are required to reply to the treaty monitoring body, within a specified timeframe, to indicate the measures that they will implement to improve compliance with the relevant treaty. A description of the functions of the respective committees is provided in the References section of this Module. In this present section, the monitoring mechanisms of only two committees are discussed: the Human Rights Committee, which monitors an individual complaints mechanism; and the Committee on the Elimination of Discrimination against Women (CEDAW).

The Human Rights Committee is the body of 18 Independent Experts that monitors implementation of the International Covenant on Civil and Political Rights (1966) by its States parties, all of which are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee examines each report and addresses its concerns and recommendations to the State Party in the form of Concluding observations. The Committee also publishes its interpretation of the content of human rights provisions, known as General comments on thematic issues or its methods of work. Among those relevant for this Module, are: 1992 General comment No. 20 on Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), and the 1982 General comment No. 9 on Article 10 (Humane treatment of persons deprived of their liberty).

Furthermore, the First Optional Protocol to the Covenant (1966) gives the Committee competence to examine individual complaints with regard to alleged violations of the Covenant by States parties to the Protocol, providing that the applicant has exhausted domestic remedies. There are instances in which these mechanisms are the only (and final) avenue of legal redress for individuals who have endured human rights abuses (including in the context of crime prevention or criminal justice). The Australian case of Corinna Horvath is illustrative. This case involved police action in which a non-cooperative suspect sustained a broken nose, a chipped tooth, and five days hospitalization as a result of physical abuse by police. After exhausting domestic remedies, Horvath lodged an individual complaint with the Human Rights Committee). (For a full description of this case, please refer to the section Case Studies).

The Committee on the Elimination of Discrimination against Women (CEDAW), consists of 23 experts on women’s rights from around the world, monitoring the implementation of the Convention on the Elimination of All Forms of Discrimination against Women (1979). States parties are obliged to submit regular reports to the Committee on how the rights of the Convention are implemented. The Committee considers each State party report and addresses its concerns and recommendations to the State party in the form of Concluding Observations. In accordance with the Optional Protocol to the Convention, the Committee is mandated to receive communications from individuals or groups of individuals submitting claims of violations of rights protected under the Convention to the Committee, and to initiate inquiries into situations of grave or systematic violations of women’s rights. These procedures are optional and are only available where the State concerned has accepted them. The Committee also formulates General recommendations and suggestions. General recommendations are directed to States and concern articles or themes in the Convention. In the context of this Module, consider for example General recommendation No. 33 on women’s access to justice (2015); General recommendation No. 35 on gender-based violence against women (2017), updating general recommendation No. 19 (2017); or Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices (2014).

Example: General Recommendation No. 33 on Women’s Access to Justice (2015), Committee on the Elimination of All Forms of Discrimination against Women

In General recommendation No. 33, the Committee on the Elimination of All forms of Discrimination against Women affirms the obligations on States parties to ensure that all women and girls have access to justice – a concept which encompasses sex and/or gender equality before the law, as well as equal protection of the law. The Committee recognizes that access to justice is fundamental to the rule of law, and integral to the fulfilment of women’s rights as enshrined in the Convention on the Elimination of All Forms of Discrimination against Women. General Recommendation No. 33 elaborates the structural discrimination and inequality that create barriers to justice for women and girls:

“These obstacles occur in a structural context of discrimination and inequality owing to factors such as gender stereotyping, discriminatory laws, intersecting or compounded discrimination, procedural and evidentiary requirements and practices, and a failure to ensure that judicial mechanisms are physically, economically, socially and culturally accessible to all women. All these obstacles constitute persistent violations of women’s human rights” (para. 3).

In further elaborating the normative guidance for States parties, the Committee identifies the six interrelated dimensions of access to justice, as follows:

“The right to access to justice is multidimensional. It encompasses justiciability, availability, accessibility, good quality, the provision of remedies for victims and the accountability of justice systems” (para 1).

From these general principles, the Committee elaborates more specific guidance for States parties, including recommendations to “Ensure that rights and correlative legal protections are recognized and incorporated into the law, improving the gender responsiveness of the justice system”; “Improve women’s unhindered access to justice systems and thereby empower them to achieve de jure and de facto equality”; “Ensure that justice system professionals handle cases in a gender-sensitive manner”; and “Confront and remove barriers to women’s participation as professionals within all bodies and levels of judicial and quasi-judicial systems and providers of justice-related services” (para 15).

These recommendations provide only a glimpse of the authoritative guidance offered in General recommendation No. 33 (2015). They serve to illustrate, however, the role of the treaty monitoring body in providing practical advice about the concrete changes needed to ensure that States parties uphold their obligations pursuant to CEDAW. Further practical guidance on these issues is elaborated at various levels, including in the Bangkok Rules (2010), as well as the comprehensive tools and publications that UNODC has elaborated to provide Member States with practical advice to guide the implementation gender sensitive law, policy, and practice with respect to policing, the judiciary, prison, and the medico-legal field/s. Among these are: the Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice (2011), along with the UNODC handbooks on Effective Police Responses to Violence against Women (2010), and Effective Prosecution Responses to Violence against Women and Girls (2014). Also relevant is the Practitioner’s Toolkit on Women’s Access to Justice Programming (2018) (UNODC, UN Women, UNDP and OHCHR).

Further information on these topics is available in various modules of the E4J University Module Series on Crime Prevention and Criminal Justice. See, in particular, Module 9 on Gender in the Criminal Justice System, and Module 10 on Violence against Women and Girls.

 

Next: Topic two - The scope of United Nations standards and norms on crime prevention and criminal justice
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