HR monitoring trends: evolutionary interpretation, intersectional approach and fact-finding methodologies

My reflections are mostly based on my experience as United Nations Special Rapporteur on trafficking in persons especially women and children, from 2014 to 2020.¹

Special Procedures, including Special Rapporteurs and Working Groups, are independent human rights experts, mandated to report and advise on human rights from a thematic or country-specific perspective². Special Procedures are not the only monitoring and reporting mechanisms of the UN. Treaty bodies monitor the implementation of UN Conventions. On certain occasions Commissions of Enquiry (such as the International Commission of Inquiry on the Arab Syrian Republic), or Monitoring missions (such as the Human Rights Monitoring Mission in Ukraine – HRMMU) have been established. The High Commissioner for Human Rights issues reports, as in the case of the recent assessment issued by the HC Ms Michelle Bachelet on HR violations in the Xinjiang Uighur Autonomous Region of China, which I will mention later.  

However, Special Procedures, as permanent monitoring mechanisms³ covering the whole HR spectrum including economic social and cultural rights, offer a unique opportunity to identify and assess innovative approaches. I will not deal with the whole spectrum of human rights, but rather mention some examples of emerging trends. 

The first, and most evident trend, is the progressive widening of the monitoring scope, which in some cases has led to a broader interpretation of the human rights concerned. 

A clear example is the UN mandate on extrajudicial, summary or arbitrary executions implying violations of the rights to life. The notion contained in the title of the mandate is not explicitly defined by any international treaty. In 2008 the then Special Rapporteur Philip Alston clarified that “[t]he terms of reference of this mandate are not best understood through efforts to define individually the terms ‘extrajudicial’, ‘summary’ or ‘arbitrary’, or to seek to categorize any given incident accordingly”. Rather, “the most productive focus is on the mandate itself, as it has evolved over the years through the various resolutions of the General Assembly and the Commission”.⁴

A few years later, in 2017, the then Special Rapporteur Agnès Callamard, while noting that to date, there is no consolidated interpretation of the meaning of “arbitrary”, identified however some criteria, extracted from various legal sources, to interpret broadly the term “arbitrary” executions. ⁵

Firstly, a deprivation of life is deemed arbitrary when it is impermissible under international law, or under more protective domestic law provisions. In addition, arbitrariness may be inferred from laws and practices, which violate the principle of non-discrimination. According to the African Commission on Human and Peoples’ Rights, “any deprivation of life resulting from a violation of the procedural or substantive safeguards in the African Charter, including on the basis of discriminatory grounds or practices, is arbitrary and as a result unlawful”.⁶

This principle shows important implications especially regarding death penalty. Data about the disproportionate presence on death row of persons of a certain race or ethnic group may suggest systemic discrimination. The element of non-discrimination applies both procedurally and substantively. UN mandate holders have consistently sustained that the imposition of the death penalty amounts to arbitrary killing in cases where the courts have ignored essential facts of a capital defendant’s case. Arbitrariness has also been interpreted to include elements of inappropriateness, injustice and lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. 

Evolutionary interpretation in this field shows important implications also regarding excessive use of force by the police. In fact, according to this broad concept of arbitrariness, since “deliberate intent” on the part of the State is not required for a killing or a deprivation of life to be deemed ‘arbitrary’, killings in circumstances of unnecessary or disproportionate excessive use of force by the police could amount to arbitrary killings and thus to violations of the rights to life, even though the police may not have killed intentionally. Therefore, the killings by the police through excessive use of force denounced by “Black lives matter”, potentially fall into the scope of the mandate.  

Furthermore, a significant enlargement of the notion of extrajudicial, summary or arbitrary executions is related to killings by non-State actors. The then Special Rapporteur adopted the same reasoning⁷ as the Inter-American Court of Human Rights in the famous “Cotton Field” decision⁸, regarding disappearances of women in Ciudad Juarez. The Court noted the existence of State responsibility for killings by private individuals, which are not adequately prevented, investigated or prosecuted by the competent authorities. It also underscored that these responsibilities are more serious when an existing pattern has been overlooked, such as is often the case with gender- based violence, trafficking in women and girls, femicide, or traditional harmful practices.

The principle of State responsibility in cases of systemic discrimination has been stated in relation to femicides and a gender-sensitive intersectional interpretation of the mandate on extrajudicial, summary or arbitrary executions. This development has a greater potential, as State responsibility could be inferred, for instance, in cases of deaths of migrants and asylum seekers during their journey. In fact, the UN Working Group on enforced or involuntary disappearances issued a Report in 2017, in which it analyzed this phenomenon in the context of migration.⁹ In the same direction, the Committee on Enforced Disappearances¹⁰ has recently started a consultation, with a view to issuing a General Comment on enforced disappearances in the context of migration.¹¹

My second example of enlargement of the mandates’ scope concerns Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Taking into consideration only the most recent developments, the monitoring mandate has been widened at least in two directions. 

Firstly, the notion of torture has been extended to torture committed by private individuals, encompassing, under certain circumstances, domestic violence. The jurisprudence of the European Court of Human Rights (ECtHR) has paved the way to the recognition of domestic violence as a violation of Article 3 of the European Convention of Human Rights (ECHR). Although the Court had formerly considered domestic violence as a violation of Article 8 ECHR on the right to respect of private and family life, in the recent cases Volodina v. Russia¹² and Tunikova and Others v. Russia,¹³ the Court held that domestic abuse is rather a violation of Article 3 on torture, while it remains unclear on which criteria the Court distinguishes between torture and inhuman or degrading treatment. In 2019 the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Mr. Nils Melzer took the view that domestic violence in many cases falls within the notion of torture and ill-treatment. Although most instances of domestic violence occur in the private sphere, governments have positive obligations to prevent, investigate, and prosecute such abuse and to provide victims with redress and rehabilitation.¹⁴

Secondly, the notion of torture has been extended to psychological torture, which is not a legal term in international law. According to the UN Convention against torture, the notion of torture comprises the intentional and purposeful infliction of severe pain or suffering “whether physical or mental”. The concept of “mental pain” is considered the legal basis to further elaboration regarding psychological torture. 

In contrast to physical torture, which uses the body and its physiological needs as a conduit for affecting the victim’s mind and emotions, psychological torture does so by directly targeting one or several basic psychological needs such as: 

1. Security (inducing fear, phobia and anxiety); 
2. Self-determination (domination and submission); 
3. Dignity and identity (humiliation, breach of privacy and sexual integrity; 
4. Environmental orientation (sensory manipulation); 
5. Social and emotional rapport (isolation, exclusion and emotional manipulation); 
6. Communal trust (institutional arbitrariness and persecution).¹⁵

The notion of psychological torture is relevant especially regarding some behaviours that can be qualified as gender-based violence, not necessarily implying the use of force or acts of physical violence, but rather consisting of methods and techniques aimed at manipulating the person concerned, which is very often the modus operandi of abusive intimate partners. 

The same trend could be observed regarding trafficking in persons especially women and girls, when traffickers use subtle means of subjugation. An OSCE Report I promoted with the Helen Bamber Foundation when I was the OSCE Special Representative on combating trafficking, shows that under certain circumstances trafficking in persons can amount to torture or cruel, inhuman or degrading treatment, especially in cases of sexual exploitation and domestic servitude.¹⁶ Authoritative reports confirming this approach have recently been issued, including in the context of the UN mandate on the Right to Health¹⁷.

Regarding evolutionary interpretation of human rights, another area should be mentioned, which is related, inter alia, with the UN mandate I used to hold, Special Rapporteur on trafficking in persons, especially women and children. In this field we can observe the same above-mentioned trend toward a broader interpretation of legal concepts. For example, the interpretation of the term “reception” included in the definition of trafficking, in the list of actions committed by perpetrators. A broad interpretation of reception includes the receiving of work performance, which puts strong focus on trafficking for labour exploitation and makes employers – not only traffickers and intermediaries – accountable. Moreover, I advocated a broad interpretation of “exploitation”, as an open concept to be adapted to social and economic situations and developments, including forms of exploitation not explicitly mentioned by the definition, such as exploitation in the context of criminal activities or in the context of forced or organized begging. 

In addition, I strongly advocated an evolution of the approach to trafficking and to action against it, aimed at bringing monitoring in line with the human rights discourse. This kind of evolution is particularly important in the field of anti-trafficking, taking into consideration that its legal basis is the so-called Palermo Protocol,¹⁸ which is a criminal law, not a human rights instrument, and that governments have often used anti-trafficking to justify restrictive migration policies, not at all in line with a human rights approach to trafficking and migration. In my reports I argued that the trafficking discourse should move away from a criminal law approach, and that trafficking must be considered primarily not a crime but rather a gross human rights violation. This approach has multiple implications, including, importantly, giving priority to trafficked persons’ rights as opposite to law enforcement and immigration authorities’ interests, preventing further violations caused by anti-trafficking action, and adopting a social justice approach.¹⁹

Not surprisingly, in this brief and non-exhaustive summary, I have mentioned, as significant examples, issues related to a gender-sensitive approach, which is in my view one of the most promising areas of innovation and evolutive interpretation of the human rights monitoring.

One of the most significant developments is related to the concept of intersectionality. Following Kimberlee Crenshaw’s studies since the beginning of the ‘90s,²⁰ the notion has become popular in the Academia, and has been widely used by scholars in various areas of the human rights research. Discrimination factors arising from gender, race, class, migration status or age, among others, are often intertwined in the life experiences of men and women. The notion of intersectionality captures the interaction between various forms and sources of discrimination including systemic discrimination, especially along the lines of race, gender and class. 

As noted in the report of the Expert Group Meeting on gender and racial discrimination, held in Zagreb in 2000,²¹ intersectionality addresses specific acts and policies creating burdens that flow along these intersecting axes and contribute effectively to create a dynamic of disempowerment.²² From a gender perspective, intersectionality has an important added value, for it helps combatting invisibility of discriminated persons and groups including LGBTQI+, and enables researchers – potentially also policy makers, law enforcement and judges – to see, for example, that not only men but also women of color are victims of police violence, as the movement “Say her name” initiated by the same Crenshaw,²³ has highlighted in the United States. 

Intersectionality is a powerful tool also in monitoring and fact finding, as a Guide recently published by UN Women shows.²⁴ However, important questions are still open about how to apply an intersectional approach to evaluation and monitoring.²⁵

I have recently suggested adopting an intersectional approach to deal with exploitation, especially concerning driving intersectional factors such as gender, race, national or ethnic or geographical origin, and/or irregular migration status, among others. Importantly, severe exploitation is prevalent in works in which the influence of intersectional factors is strong. For example, we observe severe exploitation in works linked with social reproduction such as domestic/care work, socially undervalued, historically characterized by weak regulations and weak recognition of labour rights, and often performed by migrant women.²⁶

Women subject to severe labour exploitation routinely bear abuses and mistreatment along racialized lines; they also bear sexual harassment or sexual violence. Rape and other forms of sexual violence are systematically perpetrated against women and LGBTQI+ persons in the context of sexual exploitation. Sexual violence against men exists but is underreported, due to cultural constructions of masculinity, stigmatizing men’s vulnerabilities to such form of violence. Exploited persons, and particularly women, can transit from a type of exploitation to another, typically from sexual to labour exploitation and vice-versa, or can bear multiple forms of severe exploitation at the same time, according to the interests of intermediaries and exploiters. 

Care responsibilities are significant vulnerability factors often leading to severe exploitation, as they cause not only additional and heavier work but also workers’ exposure to sexual threats and harassment. At the same time, care responsibilities are drivers of resilience, rebellion, self-realization and agency. Against this background. I have suggested working around the concept of “gender intersectional exploitation”, with a view to carrying out further research on various economic sectors such as the touristic and the textile industries, with a view to eventually validating such a notion.²⁷

As my third point, I will briefly mention a few issues related to methodologies. Although it is not my area of expertise, I would like to highlight some implications of the above-mentioned substantive trends. 

An ongoing discussion concerns the same term of “fact-finding”. According to some scholars, fact-finding implies “in-depth examination of specific incidents in order to establish evidence of responsibility” and “determine the most effective route for ensuring accountability”²⁸ be it through advocacy practices such as naming and shaming, or through criminal justice systems, both domestic and/or international. 

The latter approach gives rise to the issue of relationships between human rights fact-finding and criminal justice, including international criminal justice, regarding for example the use of international law and criminal law, in addition to human rights law, to identify violations, and the gathering of evidence that could be potentially used in criminal proceedings. 

I am fully aware of the relevance of international law and criminal law in any human rights investigations, and of the importance of identifying perpetrators and bringing them to justice, also to ensure reparations to victims. In various cases Human Rights Commissions of Inquiry or Fact-finding missions have provided the International Criminal Court with invaluable evidence.²⁹ A recent example is offered by the OHCHR Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China, issued by the High Commissioner for Human Rights Michelle Bachelet on 31 August 2022.

The High Commissioner stated that the treatment of persons held in the system of so-called VETC³⁰ facilities is of concern. “Allegations of patterns of torture or ill-treatment, including forced medical treatment and adverse conditions of detention, are credible, as are allegations of individual incidents of sexual and gender-based violence”. Although the HC affirmed that OHCHR was not in a position to detail the extent of HR violations, however she confirmed that such violations occurred, on the basis of credible evidence. At the same time, the HC stated that “the extent of arbitrary and discriminatory detention of members of Uyghur and other predominantly Muslim groups, pursuant to law and policy, in context of restrictions and deprivation more generally of fundamental rights enjoyed individually and collectively, may constitute international crimes, in particular crimes against humanity”. This is another clear example of potential use of HR fact finding for the purpose of the international criminal justice system.³¹

However, a certain autonomy of human rights fact-finding and monitoring should be acknowledged. The trend to wider interpretation of certain human rights notions is for sure an added value in the Human Rights system, for it enlarges the scope of human rights monitoring and enables governments, NGOs and practitioners to make more visible human rights violations and discriminations, especially systemic discriminations. However, evolutionary interpretation broadening legal concepts in the human rights discourse can be at odds with the criminal law principle of legal certainty. On the other hand, criminal justice strict criteria could hamper evolutionary interpretation of Human Rights Law.

Moreover, it is not always possible to adopt homogeneous criteria in a human rights investigation and in a criminal prosecution. The example of trafficking in persons shows that the existing strong focus on criminal justice has led to undermining victims’ rights and even overlooking further human rights violations deriving from anti-trafficking action. The most significant implication is related to interview techniques, mostly oriented – at least in domestic criminal law systems – to quick evidence acquisition rather than being inspired by the “do not harm” principle, which is on the contrary essential in a human rights perspective, especially in cases involving highly traumatized victims. 

My second observation concerns the relationship between fact-finding methodologies and evaluation of facts. Human rights fact-finding missions or reports have often been contested primarily because of governments’ unwillingness to take responsibilities for gross human rights violations, as it happened for instance in the case of the 2010 “Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Laws Committed Within the Territory of the Democratic Republic of the Congo between March 1993 and June 2003”, when the Rwandan government described the report as irresponsible and condemned the methodology used. 

However, issues at stake are eventually more complicated. In human rights fact-finding, politics, culture and other dimensions are always involved,³² which makes highly problematic a notion of fact-finding as an activity completely objective and neutral. Monitoring and reporting always imply, in various ways, evaluation of the facts and identification of responsibilities. According to my experience, at a certain moment, on the basis of the best available evidence, certain conclusions must be formulated, that are credible and authoritative provided that methodology used and the whole reasoning has been made transparent and verifiable. This is particularly important when the topic is highly sensitive and/or politicized.

As a last example, I will mention the Report issued by the Special Rapporteur on contemporary forms of slavery Mr Tomoya Obokata in July 2022, before the High Commissioner’s Report on the Uighur Autonomous Region of China had been made public. The Special Rapporteur, on a politically sensitive issue, stated that “Based on an independent assessment of available information, including submissions by stakeholders, independent academic research, open sources, testimonies of victims, consultations with stakeholders, and accounts provided by the Government, the Special Rapporteur regards it as reasonable to conclude that forced labour among Uighur, Kazakh and other ethnic minorities in sectors such as agriculture and manufacturing has been occurring in the Xinjiang Uighur Autonomous Region of China”.³³

Finally, I will touch upon a few further issues, which are the subject of an ongoing debate; therefore I will formulate them as open questions, with a view to fostering further discussions: 

• Should HR monitoring mechanisms adopt standardized methodologies such as those related to HRIA (Human Rights Impact Assessment), or fact-finding criteria and methods should be specifically designed or adapted in different HR areas? 
• Should NGOs adopt the same methodologies as HR monitoring institutions?
• Should fact-finding in the field of economic, social and cultural rights use the same methodologies as in the field of civil and political rights?

¹ The text reflects reflects my personal views and does not engage the OHCHR.
² They are non-paid and elected for 3-year mandates that can be reconducted for another three years. As of October 2021, there are 45 thematic and 13 country mandates.
³ Monitoring is defined by OHCHR as “the systematic gathering of information with a view to evaluating compliance with human rights commitments”. With the support of the Office of the United Nations High Commissioner for Human Rights (OHCHR), special procedures undertake country visits; act on individual cases of reported violations and concerns of a broader nature by sending communications to States and others; contribute to the development of international human rights standards, and engage in advocacy, raise public awareness, and provide advice for technical cooperation.
⁴ E/CN.4/2005/7, para. 6; A/HRC/4/20, para. 1.
⁵ Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on a gender sensitive approach to arbitrary killings, A/HRC/35/23, 6 June 2017.
⁶ African Commission on Human and Peoples’ Rights, General comment No. 3 on the African Charter on Human and People’s Rights, para 12 (Article 4, Right to Life).
⁷ Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on a gender sensitive approach to arbitrary killings, cit. See also Office of the United Nations High Commissioner for Human Rights and United Nations Entity for Gender Equality and the Empowerment of Women, Latin American Model Protocol for the investigation of gender-related killings of women (femicide/feminicide).
⁸ Inter-American Court of Human Rights Case of González et al. (“Cotton Field”) v. Mexico, Judgment of November 16, 2009.
⁹ Report of the Working Group on Enforced or Involuntary Disappearances on enforced disappearances in the context of migration, 28 July 2017, A/HRC/36/39/Add.2 3
¹⁰ Differently from the Working Group on enforced or involuntary disappearances, the Committee on Enforced Disappearances (CED) is a Treaty body, specifically the body of independent experts which monitors the implementation of the Convention by the States parties. 
¹¹ Committee on Enforced Disappearances, Call for inputs on enforced disappearances in the context of migration (concept note for CED General Comment), 3 August 2022.
¹² Volodina v. Russia, 41261/17, Judgement 9.07.2019.
¹³ Tunikova and Others v. Russia, 55974/16, 53118/17, 27484/18 et al., Judgment 14.12.2021.
¹⁴ Relevance of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment to the context of domestic violence, Interim Report of the Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment, A/74/148, 12, July 2019.
¹⁵ Psychological torture, Report of the Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/43/49, 20 March 2020.
¹⁶ Trafficking in Human Beings Amounting to Torture and other Forms of Ill-Treatment, OSCE, 2013.
¹⁷ Jeanne Sarson, BScN, MEd and Linda MacDonald, BN, MEd, Non-State Actor Torture and Sexualized Human Trafficking Victimizations perpetrated and Organized by Family and Non-Family Perpetrators against Women and Women when Children: Canada, 17 January 2022. https://www.ohchr.org/sites/default/files/2022-04/persons-against-nst.pdf. See also and the CEDAW General Recommendation N. 38 on Trafficking in women and girls in the context of global migration. 17
¹⁸ United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, made in Palermo, 2000. https://www.unodc.org/res/human- trafficking/2021the-protocol-tip_html/TIP.pdf.
¹⁹ Beyond law enforcement, towards social justice: a human rights-based approach to trafficking in persons, Report of the Special Rapporteur on trafficking in persons, especially women and children, Maria Grazia Giammarinaro, 7 April 2020, A/HRC/44/45.
²⁰ Crenshaw K. (1991). Mapping the Margins: Intersectionality, identity politics, and violence against women of color, in Stanford Law Review, 43/1991, p. 1241-1299.
²¹ Available from http://www.un.org/womenwatch/daw/csw/genrac/report.htm.
²² See also Office of the United Nations High Commissioner for Human Rights and United Nations Entity for Gender Equality and the Empowerment of Women, Latin American Model Protocol for the investigation of gender-related killings of women (femicide/feminicide), pp. 43-45. Available from http://www.un.org/en/women/endviolence/pdf/LatinAmericanProtocolForInvestigationOf Femicide.pdf.
²³ https://www.law.columbia.edu/news/archive/kimberle-crenshaw-intersectionality-more-two-decades-later
²⁴ UN Women, Intersectionality resource guide and toolkit, 2021.
²⁵ Sarah Kearney and Loren Days (Our Watch) Dr Justin Jagosh (Centre for Advancement in realist Evaluation and Syntheses) Eva Sarr (Eva-the Evaluator & Associates), Taking an intersectional approach to evaluation and monitoring: moving from theory into practice, Our Watch, 2021.
²⁶ Paola Degani, Domestic/Care Work and Severe Exploitation. The Limits of Italian Migrant Regularization Schemes, in Frontiers in Human Dynamics, 17/05/2022. https://www.frontiersin.org/articles/10.3389/fhumd.2022.818351/full
²⁷ Maria Grazia Giammarinaro, Understanding Severe Exploitation Requires a Human Rights and Gender-Sensitive Intersectional Approach, in Frontiers in Human Dynamics, 14 April 2022. https://www.frontiersin.org/articles/10.3389/fhumd.2022.861600/full
²⁸ Rob Grace and Claude Bruderlein, Building Effective Monitoring, Reporting and Fact-Finding Mechanisms (April 12, 2012): http://ssrn.com/abstract=2038854.
²⁹ See for example the Report of the Independent Fact-Finding Mission on Libya, established by the Human Rights Council in June 2020: “The foregoing provides reasonable grounds to believe that acts of murder, enslavement, torture, imprisonment, rape, persecution and other inhumane acts committed against migrants form part of a systematic and widespread attack directed at this population, in furtherance of a State policy. As such, these acts may amount to crimes against humanity. This finding is made notwithstanding the responsibility that may be borne by third States and further investigations are required to establish the role of all those involved, directly or indirectly, in these crimes”.
³⁰ VETC is an acronym relating to the so-called vocational skills education and training centre system.
³¹ OHCHR Assessment of Human Rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China, 31 August 2022.
³² Philip Alston and Sarah Knuckey, The Transformation of Human Rights Fact-Finding. Challenges and Opportunities, in Philip Alston and Sarah Knuckey (ed.), The Transformation of Human Rights Fact-Finding, Oxford University Press, 2016.
³³ Contemporary forms of slavery affecting persons belonging to ethnic, religious and linguistic minority communities, Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, Tomoya Obokata, 19 July 2022, A/HRC/ 51/26