"Mr Chairman, India has been witness to an important ongoing debate in our efforts to deal with the terrorism menace. The Prevention of Terrorism Bill is currently under consideration by our Parliament. As is normal in a democracy, a number of views have been expressed on it by political parties, the media, social activists and NGOs. All these are being taken into account. Necessary safeguards have been built into the provisions of the legislation to ensure that while helping us in our fight against terrorism, it does not lend itself to misuse."

- Statement by the Indian delegation at the 58th CHR on 20 March 2002

COMPARE this with the vertical split in the Indian Parliament over the adoption of the controversial anti-terror law, the Prevention of Terrorism Act (POTA) on 26 March 2002. With the bill having been rejected by the upper house of the Indian Parliament, the now desperate Government called a Joint Session of Parliament, where it used its majority to steamroll the bill through. This was only the third time in the history of the Indian Parliament that the extraordinary measure of calling a Joint Session was taken.

The leader of the parliamentary opposition and President of the Congress Party, Ms Sonia Gandhi, reiterated her party's argument against the bill, stating that it was likely to be used against political opponents, religious minorities, ethnic groups and trade unions (see below: “Erroneous Act”). And two parties - the Bahujan Samaj Party and the Trinamool Congress - one covert and the other an overt part of the coalition government, abstained from voting.

The fears expressed by Ms Gandhi, as also by numerous legal professionals, intellectuals, and most of the media, are well founded. Take for example the recent rioting in the Western Indian state of Gujarat that followed the burning of a train carrying Hindu activists, alleged to have been carried out by a Muslim mob. Some 62 persons were charged under POTA, then an ordinance, for carrying out the attack on the train - all Muslims. By contrast, none of the Hindus said to be involved in the subsequent rioting - that claimed more than 700 lives - were booked under the ordinance.

The cases were subsequently withdrawn on the eve of the Joint Session of Parliament, to placate the secular allies in the ruling coalition.

The events of 11 September gave the Government of India the dubious pretext it needed to introduce POTO. Although the Indian Ministry of Home Affairs justified the initial Ordinance by claiming "an upsurge of terrorist activities, intensification of cross border terrorism, and insurgent groups in different parts of the country", the MHA's own assessment however contradict this statement - its Annual Report for the year 2000 actually reported a decrease in terrorist incidents in Jammu and Kashmir, a state which remains the main focus of the Indian government's counter-terrorism measures.

There is not a single provision in POTA - excepting those which contradict the Criminal Procedure Code, the Indian Penal Code, the Evidence Act or the Constitution of India - that is not covered by existing laws such as the National Security Act, 1980; the Armed Forces Special Powers Act, 1958; the Disturbed Areas Act, the Unlawful Activities (Prevention) Act, 1967; the Prevention of Seditious Meetings Act, 1911; the Anti-Hijacking Act, 1982 No. 65 of 1982, and others.

POTA in its ordinance incarnation was promulgated despite the existence of an array of such laws. The Act allows detention of the accused for a prolonged period of detention - up to 180 days - without the filing of a charge sheet. It also effectively subverts the cardinal rule of the criminal justice system by putting the burden of proof on the accused. It does this by withholding the identity of witnesses, by making confessions made to the police officer admissible as evidence, and making bail extremely difficult by giving the public prosecutor the power to deny bail.

Experience under the infamous Terrorist and Disruptive Activities Prevention (TADA) point to the scope for misuse of the new Act and the fear that it evokes amongst the minorities. On 24 August 1994, former Minister of State for Home, Mr Rajesh Pilot stated that of the approximately 67,000 individuals detained since TADA came into force, 8,000 were tried and only 725 persons were convicted. Some 59,509 people had been detained with no case being brought against them. The TADA Review Committees found that other than in 5,000 cases, the application of TADA was wrong, and asked for the withdrawal of the cases. TADA was wrongly applied in more than 50,000 cases.

Despite the admissibility of confessions made to police as evidence - which were invariably taken under torture - the conviction rate was less than 1%.

Yet, thousands of people underwent prolonged detention without ever being convicted. The maximum numbers of arrests under TADA were not made in Punjab, Jammu and Kashmir or North East India, but in Gujarat (19,263 persons as of 1993), which had no record of terrorism. The majority of the victims belonged to religious minorities.

POTA is more draconian than TADA in many respects.

There is to be no review of POTA provisions for three years from the date it comes into force.

Under an expansive definition of terrorism - drawn from the text of TADA - POTA may also be applied to cases of murder, robbery, theft and other crimes that would ordinarily be covered under the Indian Penal Code, in addition to new crimes under the heading of 'terrorist act'.Such crimes include membership of an unlawful association - already covered under the Unlawful Activities (Prevention) Act, 1967 - or any voluntary act "aiding or promoting in any manner the objects of such association".Thus POTA provides for criminal liability for mere association or communication with suspected terrorists without the possession of criminal intent.

It criminalises attempts to harbour or conceal a terrorist, but gives no indication of who is empowered to designate someone a terrorist for the purposes of this section.

POTA criminalises membership of a 'terrorist gang' or 'terrorist organisation', the latter being defined tautologically as "an organisation which is concerned with or involved in terrorism" and thus (potentially and arbitrarily) extending to many patently non-terrorist organisations.

It designates the act of "threatening a witness" as a terrorist act, and provides for the non-disclosure of witness identities - provisions that increase the threat of false accusations by the police.

The Act criminalises the possession of an unauthorised weapon in notified areas and of bombs, dynamite and specified dangerous substances in any area. This section lends itself readily to abuse, especially by police officers, and may also be applied arbitrarily since many of the offences fall under the Indian Penal Code as well. Furthermore, the provision does not require criminal intent, and could extend to a person in possession of a weapon with a recently expired firearms licence.

POTA provides for mandatory minimum sentences, with little discretion left to judges regarding the severity of sentencing. It may also lead to extensive invocation of the death penalty, with none of the standards of scrutiny that must be ensured before such a penalty is awarded.

It does not require the government to furnish evidence and specify grounds when issuing a notification declaring an organisation a 'terrorist organisation'. The onus is thus on the accused organisation to disprove the validity of its having been declared a terrorist organisation by the Central Government. The Central Government thus becomes judge, the jury and prosecutor.

Membership of a 'terrorist organisation' constitutes an offence under the Act; the government is not obliged to provide information pertaining to an accused organisation.Failure to disprove allegations of membership of such an organisation could result in imprisonment for ten years.This violates internationally accepted standards on the presumption of innocence.

POTA outlaws the legally undefined offence of giving 'support' to a terrorist organisation, committed by inviting ‘support’ (not merely through the provision of money or other property), assisting in arranging and managing a 'meeting' in 'support' of a terrorist organisation or to be addressed by a person belonging to a terrorist organisation or addressing a meeting in support of a terrorist organisation (even in absence of criminal conspiracy or criminal intent). It outlaws encouragement or reception of money or other donations intended "for the purposes of terrorism", implicating, for instance, those who are compelled to pay 'taxes' to armed opposition groups in North East Indian states which quite a few Government officials do.

'Special courts' for trials are established under POTA.The creation of such courts jeopardise the independence of the judiciary.Special courts are given the discretion to hold trials in non-public places (like prisons) and to withhold trial records from public scrutiny, thus preventing the independent monitoring of special court sessions.Furthermore, special courts can try the accused for any charge under the Code of Criminal Procedure if it is connected to a POTA charge against the accused. They may also, at their discretion, "draw an adverse inference" from the refusal of the accused to give samples of handwriting, fingerprints, footprints, photographs, blood, saliva, semen, hair and voice - yet another digression from the principle of presumption of innocence.

POTA allows the possibility of a summary trial for offences punishable with less than three years' imprisonment. The absence of a provision to challenge the sufficiency of prosecution evidence prior to trial implies the possibility of custodial detention for an indefinite period in absence of evidence and of an appeal mechanism for the accused.

The special courts also have the option of proceeding with trials in the absence of the accused or his/her lawyer. This strengthens special courts' subjective control over the trial process.The special courts can hold trials in camera and keep witnesses' identities secret, thus undermining the right to fair trial through prejudicing of the defence case. Such a provision also imparts protection to the witnesses for the defence, but not to the prosecution's witnesses. Finally, it denies the accused the right to oppose the withholding of witnesses' identities.

It makes admissible as evidence intercepted communication against the accused.

It provides for the option of pre-trial police detention for up to 180 days, thus violating the right of the accused to a speedy trial.

Allegations made by the police can result in adverse inferences - a provision that reverses the rules of evidence and violates the right to presumption of innocence.

Action taken under POTA by central or state governments "in good faith" may be protected by punishment, and blanket immunity is given to "any serving member or retired member of the Armed Forces or other para-military forces."

POTA provides for punishment and compensation for malicious action on behalf of police officers "knowing that there are no reasonable grounds for proceeding" under POTA. This clause actually reduces the likelihood of prosecution of police abuse of POTA rather than increasing it, since there is no concomitant provision for the protection of witnesses for the defence.

The Central and State review committees lack the necessary guidelines; moreover, there is no provision for a detainee's representation before the review committees. The review committees are not required to submit their reports to Parliament or State Assemblies, implying the subordination of Parliament and judiciary to the government executive.

Finally, the Act suffers from a lack of provisions for trial procedure (in the absence the applicability of the Code of Criminal Procedure). There is no requirement to make a First Information Report (FIR) or a remand report available to the accused at arrest or at the first court hearing, with the result that the accused may remain ignorant of the reason for arrest for up to 180 days.

In short, POTA fails to offer the most basic safeguards for a fair trial and due process of law.The grim tradition of national security legislation in India has revealed that such laws result in maximum human rights violations, for minimum convictions. POTA is no substitute for political will, sound intelligence work, good governance and statesmanship in the struggle against terrorism.

Vigilance will be required to check the abuse of POTA.
 

Suhas Chakma: High Commissioner Mary Robinson in her intervention referred to suspension of Technical cooperation with the Government of Indonesia regarding the prosecution of human rights violations committed in East Timor in 1999. The High Commissioner mentioned two specific limitations of the Presidential Decree: (1) exclusion of the human rights abuses which took place prior to 30 August 1999 from the jurisdiction of the court and (2) geographical limitations on the jurisdiction of the court. Why were these restrictions placed?

H. E. Yusril Ihza Mahendra:Madam Robinson misunderstood the Presidential Decree No. 96 of 2001.She feels that it does not cover all the cases of human rights prior and after popular consultation in East Timor in August 1999.

I think the content of the Presidential Decree is in conformity with the Law No. 26 of 1999/2000 on the human rights court because the term of the ad hoc human rights court is quite different from the human rights court itself.The human rights court is the permanent court, while the President case-by-case establishes an ad hoc human rights court.So I think that the human rights court is the permanent court.But the ad hoc human rights courts, is like a temporary tribunal, because it has the jurisdiction to cover any human rights cases that happened in the past. There was a long debate in parliament, between the government and the parliamentarians, among the academics and NGOs regarding the problem of non-retroactivity principles.Because, according to all criminal systems, legal systems, the law cannot be implemented retroactively, we decided to implement the ad hoc human rights court to cover any cases that happened in the past.But the procedure to establish the ad hoc human rights courts must be decided by Parliament. And Parliament suggests to the President, the President issues a presidential decree to establish a human rights court to prosecute certain cases according to tempus delicti.

So, Madam Robinson postponed cooperation between the UN High Commissioner for Human Rights and the Indonesian government because she misunderstood the Presidential Decree.She was dissatisfied, because she said that it did not cover all the cases of gross violations of human rights in East Timor prior and after popular consultations.But in fact the new Presidential Decree Number 96 of 2001 covered all the cases in East Timor. Even without the cooperation from the UN High Commissioner for Human Rights, the ad hoc human rights court started two weeks ago. 

SC: One of the conditions of the human rights courts is that prosecutors must have previous experience of prosecution. Human rights NGOs say that the government should have involved independent lawyers in the process.

YIM: Besides the ordinary prosecutors, we also recruit ad hoc prosecutors and ad hoc judges for human rights courts. In ordinary proceedings in the Indonesian jurisdiction we also appoint three judges, but for human rights cases we appoint five judges.There are two ordinary judges and three ad hoc judges that were recruited from the academicians from the universities.Most of them are Professors of Schools of Law at famous universities in Indonesia. This makes the ad hoc human rights court different from the ordinary courts.The method of prosecution is more specific. Before we established the human rights court, we submitted to the Parliament an ad hoc human rights court law that covered the new terms of international crimes, like crimes against humanity, genocide, torture and so on. Because in our existing penal code, that we inherited from the Dutch, the term crimes against humanity is not covered. So we adopted from international conventions such as the Rome Statute, we also adopted the categories of crimes from the Rwanda and the former Yugoslavia statutes. Based on that, we established human rights courts with specific laws of procedure.

SC: How is your government planning to counter the allegations of the lack of independence of the court in view of the nomination of Judge Rudi Muhammad Riski who was once part of the legal team defending former General Wiranto in an inquiry by the Indonesian National Human Rights Commission relating to human rights crimes in East Timor in 1999?

YIM:I don't know the case of Wiranto. I think the Attorney General is still investigating this. A person who has been prosecuted was the former Governor of East Timor and former chief of the local army in East Timor. But I guarantee the courts are independent. You know that General Wiranto retired from service two years ago.

As you know, retired generals normally do not retain a strong influence, not only on society, but also more specifically for the military. And the present Chief of Staff, Mr Widodo, has a strong commitment to supporting the independence of the ad hoc human rights courts. Mr Widodo attended the second session of the ad hoc human rights court last week and he announced to the public that he guaranteed that the prosecution process should be objective and that there would be no intervention from the army in the court.

SC:Sir, you come from the pro-democracy movement. What about violations which took place within Indonesia itself during the military rule and the pro-democracy movement?

YIM: Who is the pro-democracy movement?

SC: I believe that the people who are in power now, led the pro-democracy movement. 

YIM: We must be clear first.The leftist movement in Indonesia has sometimes used the term of 'pro-democracy movements'.You consider that all political parties that form the government are not the pro-democracy movement?

SC:His Excellency the Ambassador of Indonesia in his intervention at this Commission acknowledged that the new anti-terrorism bill as reminiscent of the now defunct law No 23/1959 on subversion. The Ambassador also referred to Indonesia being caught "in the same dilemma faced by most countries, which is to find the right balance between democratic freedoms, the protection of human rights and national security". As Minister for Justice and Human Rights, what are the key safeguards that the new legislation contains to strike this balance and to ensure due process?

YIM:  You are informed that we are different from our two neighbouring countries which have Internal Security Acts. The governments can prosecute anybody, can arrest anybody without obligations to explain why the government arrests them.  In the past, we have had an anti-subversive law, that we called the 'Law for Elimination of Subversive Activities'.  But the Habibie government has changed it two years ago.  And now we don't have any law like the Internal Security Act like they have in our two neighbouring countries. 

And as we prepare to compose a new law, an anti-terrorist law, we are making comparative studies with existing anti-terrorist laws from a lot of countries; we are looking to Japan and India.Now we are still in the process of drafting an anti-terrorism law that we will submit to our Parliament in June.

Several principles form the basis of our anti-terrorism law: the first is victim protection, and the second is state defence and security, and the third is of due process of law. Due process means that anybody can be prosecuted and brought to the court, if they fulfil all of the conditions that we categorise crimes as terrorist acts.

If one condition is not fulfilled, a person cannot be prosecuted at the court based on the terrorist law.So it means that he or she must be tried under ordinary law, not by terrorist law.

For example, one of the conditions is that terrorist acts should be proved to have a political motive.If this is not proved, we cannot prosecute them based on the terrorist law. For example, if some people rob banks, use weapons and hold people hostage,as long as the public prosecutors fail to prove that they have a political motive, even the robbers who use all the techniques commonly used by the terrorists, cannot be prosecuted based on the terrorist law.So it is an ordinary crime, not terrorism.

So Indonesia tried to propose the new anti-terrorist law in full respect of human rights. And we will use the rules of procedure based on the ordinary law of procedure. So I think we do not follow the US PATRIOT Act, because a lot of criticism has been addressed to the US government because of the anti-terrorism law.

SC: There have been reports of impunity by security forces in Aceh. What measures has the Government been taking to bring an end to impunity and create a more conducive situation for successful dialogue with the Free Aceh Movement?

YIM: Sometimes it is not easy to take care of the Aceh problem. We know that the military wing of the Aceh rebels now very weak. But they use the techniques of guerrilla war.Sometimes they use the term "urban guerrilla".They kill the famous people, like the local Parliament members, university professors, and religious leaders.This means there is no choice for the police but to take action, to attack the guerrillas. In the field, there are some accidents, with victims not only from the members of the Aceh freedom movement, but also from the police. Last year, there were no attacks from the police and the army. In fact, the Aceh freedom movement successfully consolidated their power and more than one hundred police were killed by the rebels.

This is why, after that, we changed our strategy. We take action to control the situation in Aceh in terms of law enforcement, and at the same time we opened a dialogue with the Aceh freedom movement.It seems the situation is now getting better than before. I believe that the problem of Aceh can be solved based on reconciliation between the rebels and the central government.After the death of the leaders of the military wing of the freedom Aceh movement about three months ago, the situation became better.

I hope that as soon as possible we can implement the special autonomy law for Aceh. The government will keep all promises to the Aceh people, which means that we will spend a lot of the state budget to develop Aceh and make Aceh's people more wealthy and prosperous than before. I think this is the key problem of Aceh.

SC: The Office of the High Commissioner had signed a technical cooperation programme with your government and the OHCHR had a programme officer based in Jakarta. The High Commissioner's office was virtually asked to recall the programme officer. Why was your government averse to having a field officer of the OHCHR and is there any plan to allow OHCHR to send an officer?

YIM: Yes, we welcome international cooperation, even though sometimes we have some difficulties discussing matters with Madam Robinson.I think she must understand: her position as the High Commissioner of Human Rights must be neutral.She does not represent a State, she does not represent a country: she represents an international body which must respect all the countries that work together with all governments to promote their human rights.

But sometimes we feel that Madam Robinson has personal sentiment in the case of East Timor. It is a big question to ask. But I believe we can continue our cooperation because it is not a personal matter. It is the cooperation between the Indonesian government and an international body. As you looked inside, when I presented my speech, suddenly Madam Robinson went out from the room.

It is a big question to ask, why she has a personal attitude towards Indonesia. She must be neutral.

ON 6 February 2002, the Court of Cassation in Cairo released Professor Saad Eddin Ibrahim from pre-trial detention. While this development is welcome, the case of Professor Ibrahim is a disturbing symbol of the suppression of human rights defenders in Egypt.

Egypt has been in a perpetual state of emergency - yes, a contradiction in terms - since the assassination of Anwar Sadat in 1981.

The Law to Combat Terrorism (No. 97 of 1992), aided by the pronouncements of State Security courts, has allowed Egypt's security and intelligence apparatus to effect arrests and detentions outside the parameters of human rights guarantees. The state security apparatus targets not only political manifestations of Islam, but also, increasingly, non-religious political parties, NGOs, the media, and trade unions.

The situation of human rights defenders under Egypt's emergency laws is precarious. The laws allow for the closure of publications and the long-term detention (without charge) of individuals perceived as threats to "national security and public order". Non-violent political opposition is also subject to the provisions of the 1992 legislation. Indeed, strikes, public meetings and pre-election events are prohibited. Government-orchestrated mass trials of civilians in military and State Security Courts deny defendants' rights of appeal and frequently culminate in the imposition of the death penalty.

As early as 1993, the UN Human Rights Committee criticised the trial of civilians in military courts. Impunity remains rife for cases of human rights violations, including torture. The practice of 'administrative detention', in the absence of a verdict, also persists.

On 1 July 2000, Saad Eddin Ibrahim, Professor of Sociology at the American University Cairo and founder of the Ibn Khaldoun Centre for Social Development Studies (IKCDS) was arrested.The arrest was reportedly in response to his exposure of the government's tactics of intimidating voters and political candidates in the lead up to the 2000 elections.

According to the 21 May 2001 judgement of the State Security Court, Professor Ibrahim and his 27 co-defendants were guilty of spreading false information about Egypt's 1995 elections and its discrimination against religious minorities abroad; bribery; fraudulent use of funds provided by the European Commission; and of using donations for the IKCDS without explicit permission of the government. Professor Ibrahim and one co-worker were sentenced to seven years hard labour; others received sentences ranging from one to seven years' imprisonment.

The initial ruling was made despite vehement protest by the European Commission that its funds - given to Professor Ibrahim as part of the Euro-Mediterranean Partnership Agreement for the production of a documentary - were fully accounted for. Some of the charges against Professor Ibrahim are in contravention of Article 19 of the International Covenant of Civil and Political Rights (ICCPR) relating to freedom of expression, to which Egypt acceded in 1982.

While Egypt presumably justifies restrictions of these rights on the ground of derogation given its state of emergency, Article 4(1) of the ICCPR requires the life of the Egyptian nation to be under threat be defined. This can barely be the case 21 years on, if it ever was under threat. The conduct of the trial of Professor Ibrahim also raises serious questions. Human Rights Watch described it as "unfair at all stages of the proceedings". Detainees were denied access to their lawyers and many key documents were not provided to defence counsel. Though released on bail in the end of August 2000, the human rights defenders had not received a written notification of the charges against them.

Professor Ibrahim's case also contradicts the spirit of the Barcelona Declaration of the European Union of 1995, which calls for implementation of the rights to freedom of expression and association, and the spirit of the previewed Association Agreement between the EU and Egypt, calling for respect of international human rights principles.

In contravention of Article 14 (5) of the ICCPR, trials like that of Professor Ibrahim deny the defendant the right to review by a higher tribunal, allowing merely for appeal by cassation or re-consideration of the case called for by the Court of Cassation, both on very limited grounds of appeal. The retrial that is now awaited will thus proceed on the basis of the same rules as the original trial.

The new trial will, however, have to abide by binding guidelines set out by the High Court with regard to the State Security Court initial judgement's apparent flaws. The Court of Cassation was not mandated to make a pronouncement on the substance of Professor Ibrahim's case. A month-long delay in the Court of Cassation's decision on Professor Ibrahim's case had led commentators to wonder if the decision taken was free of political considerations.

The Special Representative of the Secretary General on Human Rights Defenders, Hina Jilani and the Special Rapporteur on the Independence of Judges and Lawyers, Param Cumaraswamy have sent two joint urgent appeals in the past year to the Government of Egypt concerning this case.

Despite assurances from the Egyptian authorities that the trial of Professor Ibrahim was fair and independent, Param Cumaraswamy's report states, that the Special Rapporteur "remains concerned about the allegations of lack of access to lawyers and legal advice in sensitive criminal cases and the use of the State Security Court for the trial of crimes not constituting a threat to the security of the State." (E/CN.4/2002/72, paragraph 64). 

The report of Hina Jilani to the 58th session of the Commission goes further. "The Special Representative considers that the conviction of these members of civil society for their human rights activities will have a chilling effect on the activities of other human rights defenders in Egypt.

The Special Representative notes, with particular concern, the use of laws that could restrict access to resources for the promotion and protection of human rights and could be used for penalizing human rights defenders for soliciting, receiving and utilizing funds for this human rights activity." (E/CN.4/2002/106, paragraph 161).

The treatment of Saad Eddin Ibrahim sends an ominous message to human rights defenders in Egypt.If they are too effective, too critical, they will face the full force of Egypt's arsenal of security laws and the procedural injustices that accompany them.

The case highlights the increased sophistication with which the Egyptian authorities - among others world wide - are suppressing defenders of human rights.

IT has been ten years since Mr Danilo Türk, the Sub-Commission's Special Rapporteur on the Realization of Economic, Social and Cultural Rights, submitted his final report. In it, he lamented, "[e] conomic, social and cultural rights continue to be viewed with suspicion, caution and scepticism, surrounded, as it were, with a hazy cloud of doubt and treated with an air of triviality" (E/CN.4/Sub.2/1992/16, paragraph 127).

In the past decade, there have been improvements in the profile given to economic, social and cultural rights (ESCRs) in the United Nations.The Commission, for example, now has a number of special mechanisms concerned with monitoring violations of ESCRs, and will this year consider the creation of mandates on the right to health and disabilities.However the standstill on the draft optional protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) - in the pipeline since 1997 - reflects a continuing unwillingness to enforce ESCRs.

A key objection to this development is that ESCRs are not justiciable-that they cannot be subject to judicial determination-and that therefore such a mechanism is inappropriate. Some states would go as far as arguing that they are not rights at all.

Perpetuating a false dichotomy

FOR many who subscribe to a 'generational' approach to human rights protection, there is a gulf between civil and political rights (CPRs) on the one hand, and ESCRs on the other. A common refrain of opponents is that the ESCRs are non-justiciable, and enjoy a lesser status in the hierarchy of human rights.

This interpretation is based on a number of assumptions about rights.

First, it assumes that there is a hierarchy of rights. Cold war politics dictated the adoption of separate Covenants on CPRs and ESCRs, but did not establish that one set of rights was to take precedence over the other. As emphasised by the Vienna Declaration and Program of Action-adopted by the Vienna World Conference on Human Rights in 1993-"all human rights are universal, indivisible and interdependent and interrelated".The indivisibility of CPRs and ESCRs is quite simply a matter of common sense, as noted by the South African Constitutional Court; human dignity, freedom and equality "are denied to those who have no food, clothing or shelter" (Grootboom, paragraph 23).

Second, those who question the validity of ESCRs often subscribe to a classic construction of human rights, that holds that the purpose of rights is to simply maintain individual autonomy - to restrain state behaviour, not to prescribe it.They view CPRs as negative in nature: they prohibit behaviour (and are therefore largely free), while ESCRs are positive: they require positive government action (and therefore cost money).This characterisation is false.

Both sets of rights entail positive and negative obligations: a State cannot provide a fair trial, for example, without the creation of an effective juridical structure.How this is different to creating a decent school system is not clear.Both CPRs and ESCRs also require public resources to be fully realised, whether it is in their implementation (for example, the establishment of a health care system) or in their enforcement (for example, the establishment of a police force).

Third, it is commonly argued that CPRs are precise and readily enforceable, while ESCRs are imprecise in their scope and therefore do not guide judges sufficiently as to their contents.Arguably, only those who don't bother to read the instruments posit this.Some civil and political rights appear very vague indeed - and yet are unquestionably justiciable.

In its General Comments and jurisprudence, the Human Rights Committee has rejected any suggestion of a sharp divide between CPRs and ESCRs.In consideration of the admissibility of a number of individual complaints, the Committee has found itself competent to examine discrimination with respect to ESCRs (Zwaan-De Vries v the Netherlands; Broeks v the Netherlands).Further, in paragraph 5 of General Comment 6 the Human Rights Committee states:"…the Committee has noted that the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics."

Denials of justiciability

IN addition to making a distinction between CPRs and ESCRs, opponents of ESCRs advance several arguments on the construction of international instruments, and their enforceability in courts.Most often, opposition is pegged on the text of Article 2 of the ICESCR.

Article 2 of the ICESCR provides, "[e] ach State Party to the present Covenant undertakes to take steps… to the maximum of its available resources….to achieve progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."It is true that the language of Article 2 of the ICESCR is weaker than that of its ICCPR equivalent, however both provisions clearly assume legislation.

As Philip Alston has noted, once a right is recognised, it ought to be implemented.Further, the Vienna Convention on the Law of Treaties requires that all treaties be interpreted in good faith and the ICESCR prescribes that measures should be taken.

The Committee on ESCRs has repeatedly rejected the suggestion that Article 2 undermines enforceability.In its General Comment No. 3 in 1990, the Committee noted that "[a]mong the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to rights which may, in accordance with the national legal system be considered justiciable."

On the question of justiciability, General Comment No. 9 of 1997, also notes that in relation to CPRs, it is "generally taken for granted that judicial remedies are essential… Regrettably the contrary assumption is too often made in relation to economic, social and cultural rights."The Committee concludes "[t]his discrepancy is not warranted either by the nature of the rights or by the relevant Covenant provisions" (paragraph 10).

In interpreting Article 2, the Limburg Principles of the Implementation of Economic, Social and Cultural Rights note that "[a]lthough the full realization of the rights recognized in the Covenant is to be attached progressively, the application of some rights can be made justiciable immediately, while other rights can become justiciable over time".

As the Committee points out, numerous provision of the ICESCR are capable of "immediate implementation".These include: articles 3 (equal rights of men and women), 7(a)(i) (fair wages and equal wages for men and women), 8 (right to form trade unions), 10 (3) (special measures for children), 13 (2)(a) (free and compulsory primary education), 13 (4) (freedom to establish educational institutions) and 15 (3) (respect for scientific freedom).

Another argument offered in opposition to ESCRs is that they require judges to take political, rather than legal decisions: largely because determinations on ESCRs often raise questions of resource allocation and public policy priorities. This argument fails to acknowledge that courts routinely adjudicate on matters of public policy anyway.They often have to make decisions balancing between competing rights - for example the right to freedom of speech versus the right to privacy.

The Committee on Economic, Social and Cultural Rights has dealt with this objection in its General Comment No. 9, paragraph 10, in which it stated, "[i] t is sometimes suggested that matters involving the allocation of resources should be left to the political authorities rather than the courts.While the respective competences of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters, which have important resource implications. The adoption of a rigid classification of ESCRs, which puts them, by definition, beyond the reach of courts, would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent.It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.

Examples of justiciability 

In the Government of South Africa vs. Grootboom (Constitutional Court of South Africa, Case CCT 11/00, 4 Oct. 2000) the Court stressed that "many of the civil and political rights entrenched in the constitutional text will give rise to similar budgetary implications without compromising their justiciability.The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be bar to their justiciability.At the very minimum, socio-economic rights can be negatively protected from improper invasion."

On 25 March 2002, the High Court in Pretoria upheld a December 2001 ruling that the government must provide Nevirapine - a drug that reduces the risk of HIV positive women passing the virus to their children - through all public health facilities "with the capacity for testing and counselling". The government had objected to the distribution of the drug primarily on the grounds of expense.

In the original judgement of 14 December 2001, Judge Chris Botha declared that the government policy of "prohibiting the use of Nevirapine outside the pilot sites in the public health sector is not reasonable and that it is an unjustifiable barrier to the progressive realization of the right to health care."He also found that the government had violated section 27 of the South African Constitution, which guarantees access to health care services including the right to reproductive health care. In a country where one in nine people, and 25 percent of all mothers are HIV positive, this judgement is welcome.The message it sends on the justiciability of the right to health is also valuable.

How courts actually enforce ESCRs was considered at length in the Grootboom decision, in which the Constitutional Court of South Africa adopted a 'reasonableness' test to determine whether the State was complying with its obligations in respect of ESCRs.

According to the Court's methodology, the degree of the violation is considered in light of its social, economic and historical context, and the capacity of official institutions to implement programmes to address it.

One participant in the High Commissioner's workshop in February 2001, reported the South African approach adopted in Grootboom as "an appropriate balance between the constitutional responsibility of the courts to enforce the duties imposed by socio-economic rights, and the role of the legislature and the executive in a democracy to make and implement laws and policies, thereby fostering a relationship of accountability, transparency and responsiveness between judiciary, legislature and executive". (E/CN.4/2001/62/Add.2, paragraph 8)

The international community has also increasingly acknowledged the justiciability of ESCRs. In the Inter-American system, the San Salvador Protocol - which came into force in 1999 - provides for complaints to the Inter-American Commission.

Most recently, the Optional Protocol to Convention on the Elimination of All Forms of Discrimination against Women - which came into force in December 2000 - provides for individual complaints, including cases of discrimination relating to economic, social and cultural rights

Need for a strong mechanism 

The whole point of the Optional Protocol to the ICESCR is that it would be optional.Vigilance is required to ensure that those States that fundamentally don't believe in ESCRs and would never sign up for it anyway do not weaken the potential mechanism.

"We know well from the past experiences in Afghanistan and elsewhere, that sustainable peace, reconciliation and reconstruction and development cannot be built upon a foundation of impunity… There can be no amnesty for perpetrators of war crimes, crimes against humanity and gross violations of human rights…." 

- Mary Robinson in Kabul on 9 March 2002

IMPUNITY in Afghanistan has a long lineage as warring factions have ravaged the country. No accountability has ever been established for large-scale and often well-documented violations of human rights and of international humanitarian law by all Afghan political parties. The massacre of civilians and captured soldiers have been "widespread or systematic", a criterion for crimes against humanity.

In late May 1997, some 3,000 captured Taleban soldiers were summarily executed in and around Mazar-i Sharif by Jumbish forces under the command of Abdul Malik Pahlawan. The killings followed Pahlawan's withdrawal from a brief alliance with the Taleban. Many captured Taleban fighters were taken into the desert and shot, while others were thrown down wells and then blown up with grenades.

The Taleban forces re-captured Mazar-i Sharif on 8 August 1998. According to Amnesty International, "Taleban guards deliberately and systematically killed thousands of ethnic Hazara civilians during the first three days following their military takeover of Mazar-i Sharif on 8 August 1998". The area was closed to foreign media and independent observers. Amnesty International further stated that the vast majority of those killed were from the Hazara ethnic group living in the Zara'at, Saidabad and Elm Arab areas of the city. The victims were killed deliberately in their homes, in the streets where their bodies were left for several days, and in locations between Mazar-i Sharif and Hairatan. Many of those killed were civilians, including women, children and the elderly who were shot trying to flee the city.

In at least one instance, a group of prisoners were reportedly executed in front of villagers near the city of Hairatan. Some 70 men were said to have been executed in a Halal killing ritual at the tomb of Abdul Ali Mazari.

The Northern Alliance has also committed systematic violations of human rights and international humanitarian law. In March 1995, forces of the faction loyal to Ahmed Shah Masood were responsible for rape and looting after they captured Kabul's predominantly Hazara neighbourhood of Karte Seh. The US State Department Country Report for Human Rights Practices in 1996 reported, "Masood's troops went on a rampage systematically looting whole streets and raping women". In 1994 alone, before the Taleban took over, an estimated 25,000 were killed in Kabul, most of them civilians killed in rocket attacks by the United Front.

The Commission on Human Rights in its resolution 2001/13 urged all Afghan parties "[t]o provide efficient and effective remedies to the victims of grave violations and abuses of human rights and of international humanitarian law and to bring the perpetrators to justice".

Before 11 September 2001, Human Rights Watch in its report "Crisis of Impunity" of July 2001 condemned the international community for failing to address the impunity of Afghanistan's warlords and their followers. On the basis of his investigation into the Yakawlang massacre, the Special Rapporteur on the situation of human rights in Afghanistan Kamal Hussein opined that "that a complete and comprehensive investigation is not only feasible, but essential to preserve evidence and provide a basis for enforcing accountability by bringing to justice those responsible…" He based his recommendation on the observation that "[e]nding abuses requires ending impunity" which, in turn, required action rather than omission by the UN and its member states. [A/56/409/Add.1]

Even the takeover of Afghan cities by the United Front and Allied Forces was not free from violations of human rights and international humanitarian law. The massacre of hundreds of surrendered Taleban prisoners at Mazar-i-Sharif's Qala-i-Jhangi Fort from 25 November 2001 is an example of post-Taleban violations of international humanitarian law.Reports referred to a prisoners' uprising. However, the trigger of the incident and the proportionality of the response by United Front and the Allied Forces have not been adequately investigated. The International Committee of the Red Cross (ICRC) reportedly buried over 200 prisoners

On 5 December 2001, ICRC President Jakob Kellenberger urged respect of the Geneva Conventions, emphasising that "all persons who surrender are entitled to a humane treatment regardless, in the case of Afghanistan, of whether they are Afghan Taleban or foreign fighters". The High Commissioner for Human Rights, Mary Robinson, called for an international inquiry into the incident. This suggestion was rejected by the United Kingdom and the United States.

Kamal Hussein's report to the 58th session of the Commission notes numerous civilian casualties in the course of the war against terror in Afghanistan. "A convoy of community leaders reportedly on their way to attend the inauguration of the Interim Administration in Kabul on 22 December was struck near Gardez (Paktia Province), resulting in more than 60 deaths. Another air strike on 27 December 2001 in eastern Paktia province reportedly caused the death of civilians, many of them members of a wedding party. The death toll ranged from 60 to 100. On 24 January 2002 in a ground operation in Urzgan at night, there were reportedly 21 civilian deaths and compensation was distributed, apparently acknowledging that these civilians were the results of error, presumably owing to faulty intelligence".

These incidents violate the rules governing the conduct of hostilities in international armed conflict as provided in Additional Protocol I to the Geneva Conventions of 1949, most provisions of which reflect customary international law.

Under the Bonn Agreement of 5 December 2001, the Interim Administration of Afghanistan has taken charge of affairs in Afghanistan. After the take over, reports of abuses continue, such as the measures of revenge against ethnic Pashtuns in Northern Afghanistan, including beatings, looting, murders, extortion and sexual violence. None other than Afghanistan's current Minister of Foreign Affairs, Dr Abdullah Abdullah, has confirmed this in his address to the Commission on Human Rights on 19 March 2002.

Short term and long term measures need to be taken to prevent further abuses and to establish accountability for past abuses. The needs of the Afghan Interim Administration are vast: a national police force empowered to provide "security of person and property" and "impartial and effective law enforcement", an independent judicial system and a national human rights commission. Minister Abdullah further requested the establishment by the UN of a "human rights verification and confirmation office in Kabul". Disarming of armed groups across Afghanistan remains crucial.

The establishment of accountability, especially in a complex situation like Afghanistan - torn and virtually ruled by provincial warlords of ethnic backgrounds - is not going to be easy. "A broad based, gender sensitive, multi-ethnic and fully representative" government, observers hold, requires the inclusion of those accused of violations of international humanitarian law.In his latest report, Kamal Hussein recommends the electoral disqualification of "major perpetrators of atrocities and gross violations of human rights" in the election for a transitional government in May 2002. Human Rights Watch earlier urged the exclusion of "commanders with a (record of) serious violations of international humanitarian law, including… Abdul Rashid Dostum..."

However, with many of the violators of international humanitarian law, such as Abdul Rashid Dostum, back in the corridors of power in Kabul, any national process to establish accountability for past abuses is bound to be flawed.

Even the coalition forces in Afghanistan, led by the United States, have failed to demonstrate their commitment to human rights and accountability.The United Front and coalition forces, led by United States, rejected the United Nations' call for an investigation into the massacre of the captured Taleban soldiers in Mazar-i Sharif. At the same time, any enquiry - national or international -, which excludes violations of human rights and international humanitarian law by the United Front and Allied Forces, will also be flawed. Yet, as the Special Rapporteur has urged, inquiries should be held for the sake of the credibility of the war against the Taleban.

Given the complexity of the situation in Afghanistan, a truth and reconciliation commission for the country appears to be the only real way forward. Regrettably, experiences in other nations reveal that truth and reconciliation commissions can too often be used to offer amnesty to violators, rather than justice to victims. The international community including the United Nations will hail the establishment of an effective commission.

However, peace has far from taken hold in Afghanistan. The international community must be mindful of the prospect of further conflict. Should the majority Pashtuns win a majority of seats if the delimitation of the constituencies is made proportionate to the population, peace in Afghanistan will require acceptance of the outcome by the Northern Alliance. Otherwise, renewed conflict is a distinct possibility.

The end of the Taleban has not signalled the end to human rights abuses.Afghanistan needs to be reconstructed based on the four pillars of respect for human rights, international humanitarian law, the rule of law and combating impunity.

Those who do not learn from history are condemned to repeat it.

…Upholding the Charter of the United Nations and building upon the values of the Millennium Declaration, we commit ourselves to promoting national and global economic systems based on the principles of justice, equity, democracy, participation, transparency, accountability and inclusion." 

- Art. 9 Monterrey Consensus

The "Monterrey Consensus" is not a weak document, as some have claimed. It will be weak if we fail to implement it. But if we live up to the promises it contains, and continue working on it together, it can mark a real turning point in the lives of poor people all over the world. Let's make sure that it does!

-Kofi Annan, Press Conference during the International Conference on Financing for Development, Monterrey, Mexico, 21 March 2002.

FOLLOWING a decade of Global Summits, the International Conference on Financing for Development was convened in March 2002 with the intention of mobilising the resources and mechanisms to implement the Goals agreed at the Millennium Summit in September 2000. The Millennium Development Goals (MDGs) consolidated the action plans of the World Summit for Children, the International Conference on Education for All, the Earth Summit, the World Conference on Population and Development, the Social Summit, the Beijing Women's Conference, Habitat II and the World Food Summit. As fine as the action plans from those meetings were, few were implemented because of the lack of will. States failed to commit the resources needed for realising the action plans.

During the preparations for the Monterrey Conference there were encouraging indications that a comprehensive and innovative consensus to ensure "the means to achieve the Goals" would be developed and affirmed in Monterrey. Unfortunately, modifications to the early drafts eroded those expectations. The final text was judged to be weak by many, reflecting Kofi Annan's remark.

Despite the perceived weaknesses, the meeting itself did produce some promising indications that more could be done with the recognition of the need for stronger commitments to the level of aid by the United States and the European Community and its member states. The US and European Union, with the complicity of countries like Japan and Australia, eroded the recommendations that had been made by expert groups and representatives of civil society and the developing countries.

Some important symbolic moments in Monterrey reflected a recognition that more needs to be done cooperatively at a global level if the MDGs are to be achieved by 2015. Meaningful action must be taken to address increasing inequality within and between States as a consequence of globalisation, the debt burden of the poorest countries must be addressed and a more fair and open trading system is required.

But if the process beyond Monterrey to the Johannesburg World Summit for Sustainable Development in August 2002 and thereafter is not going to continue the frustrations of the past, those symbols of apparent consensus and cooperation between the UN Secretary General, the World Bank, the International Monetary Fund (IMF) and the World Trade Organisation (WTO) must extend beyond mere rhetoric. Issues such as: the commitment to higher aid levels; a recognition of the need for deeper and wider debt relief and an international bankruptcy mechanism; greater openness for developing countries' products into global markets; innovative measures for taxation instruments which increase national revenue raising as well as global taxation with a recognition of the need for the provision of "global public goods" must be seriously addressed.

The outcomes of the other major international conference of the 1990s, such as the Vienna Human Rights Conference in 1993, were not brought to bear on the realisation of the action plans of the other Summits. More could have been achieved by the adoption of a human rights framework for the processes which were identified requirements to reduce poverty, to ensure the inclusion of people in political, social and economic processes and a sustainable future for humanity, to protect the environment or to guarantee the delivery of the rights to food, shelter, education and health for all.

Secretary General Kofi Annan has sought to mainstream human rights, and the High Commissioner for Human Rights has responded to that call proactively in her term of Office. However, the mainstreaming of human rights - the valuable contribution of the international human rights instruments and institutions - is not visible in the processes of global institutions in New York and Washington.The Monterrey Consensus makes but a passing reference to a commitment to human rights: "Good governance is essential for sustainable development. Sound economic policies, solid democratic institutions responsive to the needs of the people and improved infrastructure are the basis for sustained economic growth, poverty eradication and employment creation. Freedom, peace and security, domestic stability, respect for human rights, including the right to development, and the rule of law, gender equality, market-oriented policies, and an overall commitment to just and democratic societies are also essential and mutually reinforcing." (emphasis added).

With such a passing reference to human rights and given the lack of genuine dialogue and engagement between economists and human rights practitioners, there is a danger that commitments made and intentions agreed will again fail to be realised. The resistance to dialogue by the World Bank as experienced by the Special Rapporteur on the Right to Education, Ms Katarina Tomaševski, is telling. Ms Tomaševski sought to remind those institutions of their obligation to ensure the realisation of the Right to Education and the reaction of these institutions reflects the lack of what the High Commissioner has called 'multi-linguism' on the part of economic institutions.

In Monterrey, the Secretary General has been asked "to provide - with collaboration from the secretariats of the major institutional stakeholders concerned, fully utilising the United Nations System Chief Executives Board for Coordination mechanism - sustained follow-up within the United Nations system to the agreements and commitments reached at the present Conference…(and) is further requested to submit an annual report on those follow-up efforts." The Declaration further states: "We recognize the link between financing of development and attaining internationally agreed development goals and objectives, including those contained in the Millennium Declaration, in measuring development progress and helping to guide development priorities."

"We welcome in that regard the intention of the United Nations to prepare a report annually."

"We encourage close cooperation between the United Nations, the World Bank, the International Monetary Fund and the World Trade Organization in the preparation of that report."

"We shall support the United Nations in the implementation of a global information campaign on the internationally agreed development goals and objectives, including those contained in the Millennium Declaration. In that respect, we would like to encourage the active involvement of all relevant stakeholders, including civil society organizations and the private sector."

The Commission on Human Rights in its deliberations on Item 10 - Economic, Social and Cultural Rights needs to bear in mind the Monterrey Declaration. The CHR, in its resolutions on Item 10 and other related resolutions should identify ways to engage in dialogue to ensure the international community and national governments in North and South are held accountable for the commitments made to work towards the MDGs. Building on ongoing work, there are specific opportunities for the CHR and its mechanisms to play a role in the process.

THE Commission should consider these opportunities to engage with the Monterrey Declaration as it considers the Report of the High Commissioner on the collaborative work with UNCTAD on "Globalisation and its impact on the full enjoyment of Human Rights"(E/CN.4/2002/54).In particular, the challenge that the High Commissioner brought to the Annual Meeting of the World Bank in Prague in 2000 - "how can we humanise globalization in such a way that is can benefit all instead of some?"- must be noted. The Commission should go further in considering this in the context of the obligations of the parties to the International Covenant of Economic, Social and Cultural Rights. The report of Mr Hatram Kotrane, the Independent Expert on a draft optional protocol to ICESCR together with the Secretary General's Report on the issue could provide the basis to move forward. The earliest possible development of the Optional Protocol and the establishment of suitable mechanisms to hold the parties to ICESCR accountable for the realisation of the MDGs by their commitment of the necessary resources and policies.

The Commission should also authorise the Special Rapporteurs under Item 10 to continue and further develop the dialogue with the World Bank and the IMF as well as with the OECD and donor governments with a view to ensuring the recognition of the role of aid and policy frameworks in the progressive realisation of Economic, Social and Cultural rights and the Right to Development.

The Doha meeting of the WTO recognised the importance of market access to developing countries exports and of the effect of the TRIPS instruments in impeding access to the necessary medication for people living with AIDS. These matters are being pursued in a potential new Development Round, along with the establishment of an appropriate TRIPS agreement to guarantee the right to health through access to the necessary treatments. The mainstreaming of human rights in the Poverty Reduction Strategies of the World Bank and the IMF, other financial institutions and the United Nations Development Assistance Framework is crucial. Recognising the core commitment in the MDGs to poverty reduction, the report of the Independent Expert on Human Rights and Extreme Poverty should stimulate the debate on mainstreaming human rights, and build upon the commitments of Monterrey.

After Monterrey, the international community has the responsibility to implement and monitor the fulfillment of commitments made - and to advocate and act on the creative ideas identified during the discussions in Monterrey. The opportunity presents itself to this session of the Commission, with the involvement of civil society, to ensure that the goals of the Millennium Summit are attained.

Greg Thompson is the Chief Executive Officer of Anglicord, Australia

SAFIYA Husseini, a 35-year-old Nigerian woman was convicted of committing adultery under Sharia law and sentenced to death by stoning in October 2001. On 25 March 2002, a Muslim appeals court in Nigeria reversed the conviction.The reversal was given on the grounds that, at the time of the contended adulterous affair, Sharia had not yet been implemented.The court stated that Sharia law cannot be retroactively applied - offences that occurred before its adoption are not subject to trial under its principles.The appeal court's decision was based on legal grounds, rather than on an actual or perceived violation of human rights. Safiya Husseini's story and others like it have drawn international attention to northern Nigeria, where a rise in Islamic fundamentalism has led state leaders to introduce Sharia, a hard-line civil and criminal code based on the strict interpretation of Islam's Holy Qu'ran.

Impact of Sharia

UNDER Sharia, persons convicted of adultery are buried to their neck in sand and stoned to death.Such seemingly harsh sentences are typical of Sharia’s legal framework that punishes theft by cutting off the perpetrator's hand and punishes pre-marital sex by administering 100 lashes in public. Proponents of Sharia say it is a unifying precept for Muslims in that it envisages a community that is morally, religiously, and ethically sound.Moasur Ibrahim Sa'id, one of the drafters of Sharia in Ms Husseini's home state of Sokoto said, "Crimes of drinking, fornication [premarital sex], and adultery carry stiff penalties because they degrade the moral environment, potentially leading others down similar paths."

Because of the seriousness of these crimes and the harsh penalties that accompany them, a significantly higher standard of proof is required to convict an individual in cases tried under Sharia. In the case of adultery, four reliable witnesses must testify to having actually seen the penetration of the woman.If four witnesses cannot be produced, the only other allowable evidence that can prove unlawful sexual intercourse is pregnancy.In theory, the burden of proof should protect both men and women from unfounded accusations, but in reality, given the rarity of four eyewitnesses to a sexual act, a woman's pregnancy becomes the only evidence needed to convict.Since the introduction of Sharia law last year, four women have been charged with adultery - all because they were pregnant.No men, to date, have been charged with similar crimes.

Sharia discriminates against women accused of sexual crimes. The structure of Sharia and the way in which the burden of proof works against women, means that women are often hesitant to report crimes that may have been perpetrated against them.There is a risk that if a woman reports a rape or sexual assault, but is unable to substantiate it, she may face punishment for bringing false accusation.

The inherent difficulties for women in defending themselves in cases tried under Sharia have led to widespread claims of institutional discrimination.Sharia has seen a disproportionate number of women convicted for sexual offences.While it is common to hear Nigerian men talk openly about mistresses, very few - if any - are charged with adultery.For women, Sharia discriminates because its burden of proof to convict is easier met.For men, building a case is much more difficult, if not impossible.Although Sanusi L. Sanusi, a moderate Muslim, supports Sharia, she acknowledges that, "[t]he way [Sharia] is written, only women will ever be convicted of fornication or adultery, and it will be mostly the poor who don't have access to sex education or abortions."

In the trial of Safiya Husseini, her initial defence to the adultery charge was that she had been raped by her neighbour.When he was acquitted by the court for lack of evidence, she was left with no other defence.The adultery conviction quickly followed.However, in her appeal, she changed her defence to take advantage of a loophole in Sharia which states that a baby can "sleep" inside the womb of the mother for several years before swelling. She changed her story by saying that relations with her former husband some 18 months prior led to her pregnancy.In many ways, before the appeals court reversed the conviction, her life hung on this biological impossibility.

In addition to the question of discrimination in the application of justice, opponents of Sharia condemn its especially harsh sentences as torture, inhuman and degrading treatment. Since the introduction of Sharia in 12 states in northern Nigeria, several amputations and public floggings were carried out.

Sharia and international law