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The Federal Republic came under scrutiny at the United Nations Human Rights Council


Germany Review - 44th Session of Universal Periodic Review, 2023
Germany Review - 44th Session of Universal Periodic Review, 9 November 2023 Source: Recording of the Human Rights Council

Belarus and Iraq recommend that Germany protect peaceful demonstrations from police violence. Mexico advises recognizing femicide as a criminal offence. Qatar envisages a guarantee on freedom of assembly. Saudi Arabia criticizes double standards in freedom of expression, and China recommends intensifying the fight against poverty in Germany.

Dr. Silke Voß-Kyeck observes and analyses developments in the UN Human Rights Council for the Forum Menschenrechte and is a research associate at the German Institute for Human Rights.

Fake news? Satire? Neither. Rather, this is what happened at the UN Human Rights Council in Geneva when Germany underwent its human rights review on 9 November 2023, where every country had the same right to point out shortcomings and call for improvements.

This Universal Periodic Review (UPR) was established in 2006 with the founding of the UN Human Rights Council. Its predecessor, the UN Commission on Human Rights, had been repeatedly criticized during its final years for its discriminatory treatment of many states. The newly created Human Rights Council was therefore meant to include a mechanism that would counteract the warranted accusations of selectivity.

The Same Rules for Everyone

Since then, all of the 193 UN member states, without exception, have had to undergo a review of their respective human rights situations, all according to the same rules, in public, and at regular intervals.

The standardized procedure is based on three reports: a statement by the respective nation about the human rights situation in its own country since the last review, a summary of findings by various UN human rights bodies, and a condensed report of petitions by civil society organizations and their respective National Human Rights Institutions (NHRI). The aim of the UPR is to bring about improvements in the human rights situation in the country in question.

Two features of the procedure are of prime importance. The first is a classic “peer review”, in which recommendations are made by diplomats from other states and not by independent experts, such as those in the UN committees that monitor compliance with specific human rights agreements. The second important feature is that, although the civil society organizations only sit in the audience during the actual hearing, they nevertheless have the right to speak when the final report is accepted by the Human Rights Council and, most notably, they are embedded in the proceedings due to their documented reports. The extent to which some states fear the participation of civil society is made particularly clear by the repressive measures they use to try to stop human rights defenders from going to Geneva.

The procedure in Geneva is by no means free of ritualized declarations, although no state has withdrawn from this review so far. The UPR created an invaluable repository of publicly available documentation on the human rights situation that no state can dodge. The ways that many countries have evolved in collaboration with civil society has been particularly impressive.

As in previous reviews of Germany, many countries expressed their concern about racism and discrimination in society and institutions as well as hate crimes and inadequate prosecution.

For example, Austria began reforming prison conditions in 2015. In South Korea, marital rape was made a criminal offence in 2013. Canada adopted a national strategy in support of the right to housing and passed a corresponding law in 2019. In 2021, the Jordanian parliament passed a law against human trafficking.

While such developments can hardly be attributed to the UPR directly as they usually come about due to a combination of factors working together, the UPR has nevertheless made a crucial difference in many cases.

More than Just a Brief Appearance

Germany had to submit to a review for the fourth time last November, following reviews in 2009, 2013, and 2018.

Prior to the Geneva dialogue, there were two lengthy consultation meetings in March and June involving personnel from relevant ministries and coordinated by the Forum Menschenrechte (FMR, Forum for Human Rights) and the German Institute for Human Rights (GIHR). During this human rights assessment, not all ministries were open to interference from Geneva or engaging in dialogue with civil society. However, the national report that the German government submitted in August indicated that some of the suggestions and criticisms from the consultation rounds were indeed taken onboard.

As the head of the government delegation, Human Rights Commissioner Luise Amtsberg opened the session in Geneva, which lasted more than three hours, with a welcome statement of self-criticism. She cited not only the progress that Germany had made on human rights since 2018 — such as ratifying both ILO Convention No. 169 and the Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights, as well as withdrawing reservations concerning the so-called “Istanbul Convention” on combating violence against women — but also mentioned challenges that civil society had rightfully highlighted, such as gender inequality, domestic violence, and a help system that fails to meet people’s needs. Poverty, especially child poverty, was also among the human rights problems people are facing in Germany. Finally, racism and discrimination as well as deficiencies in migration policy are significant challenges that the German government needs and wants to address.

What Was Criticized

The majority of the 346 recommendations provided by 123 countries focused on these issues.

As in previous reviews of Germany, many countries expressed their concern about racism and discrimination in society and institutions as well as hate crimes and inadequate prosecution. The German delegation referred to training initiatives, the appointment of an anti-racism commissioner and a Federal Police Commissioner, and the undertaking by the present government’s coalition agreement to remove the term “race” from the German constitution.

There were numerous and specific calls for measures against racial profiling by the police, which the delegation rejected as they had done previously by stating that this was not permitted under current legislation anyway. Even so, the national report did reference statements to the contrary from civil society field reports and the government’s anti-racism commissioner. Thus, it can only be hoped that the German government will not reject this concrete UPR recommendation yet again.

Albania recommended that the German government actively cooperate with civil society once the UPR was completed.

For those in the audience, the discrepancies between the commitments made in the coalition agreement on the one hand, and current legal provisions, current developments, and political plans on the other, became particularly evident when it came to the subjects of migration and the rights of refugees. The defensive reflexes that were on display during the consultations with German civil society in March and June continued in Geneva. Ratification of the Migrant Workers Convention — which received 19 recommendations alone — is a long-standing issue and, given the German government’s fundamental rejection of it, is likely to remain a topic at the fifth UPR in just over four years’ time. With extremely limited time to react, the German delegation confined itself to emphasizing the equal right to education for refugee children and the possibility of legal migration under the Immigration Act for Skilled Workers.

Violence against women and girls as well as gender (in)justice with regard to pay and participation were also the subjects of many recommendations. The FMR also commented on this in detail, criticizing, for example, the shortfall of 14,000 spaces in women’s shelters as well inadequate prosecution of domestic violence. The rights of children, for instance in the context of inclusion, were also frequently addressed. There was a surprisingly large number of recommendations for climate protection measures. In light of the war in Gaza, a series of critical remarks regarding pro-Palestinian demonstrations were also presented, to which the German delegation responded with a clear commitment to the right of assembly.

Much to the FMR’s regret, little attention was paid to the rapid rise of poverty, and particularly child poverty, in Germany as a result of the pandemic and inflation, something that the German government does not seem to sufficiently recognize as a human rights problem. It also fails to recognize that massive and growing social and economic inequality is a key factor in the spread of ideologies of inequality in society.

It is now up to the German government to decide which of the recommendations it will “accept” by the next session of the Human Rights Council in March 2024 in the form of a political — not a legal — obligation to implement them by the next UPR. Recommendations that are “duly noted” are de facto rejected. In 2018, that amounted to 50 out of 259 recommendations.

Since many recommendations are formulated more generally and are therefore easier to accept, it is now once again up to the human rights organization and the GIHR to turn the recommendations from Geneva into concrete demands for human rights and to work towards ensuring that the UPR actually leads to local improvements, as is the aim of the procedure. Albania recommended that the German government actively cooperate with civil society once the UPR was completed. This recommendation should in no way be controversial, given that after the UPR is before the UPR.

Translated by Shane Anderson and Joseph Keady for Gegensatz Translation Collective.