Land reform in Zimbabwe: EU buries its head in sand

The EU’s proposed draft resolution on Zimbabwe fails to refer to the issue of land reforms in the country

Human rights abuses against political opponents and the white minority in Zimbabwe  require little introduction. The Commission on Human Rights (CHR) is scheduled to discuss a draft resolution on the situation of human rights in Zimbabwe sponsored by the European Union. (see box below).

The proposed draft resolution expresses concern at the human rights violations committed by the Zimbabwean ruling party, war militias and Zanu-PF youth militia.

These violations include enforced and involuntary disappearances, summary executions, kidnapping, torture, beating, harassment, arbitrary arrest and detention without trial, including journalists, opposition politicians and their supporters and human rights defenders.

It also expresses concern at attacks on the independence of the judiciary and the rule of law; cases of sexual and other forms of violence against women, racially motivated intimidation of Zimbabwe's minority ethnic communities; the violations of freedoms of expression, opinion, association and assembly in Zimbabwe; the disregard by the Executive of Court rulings; and acts of intimidation against, and persecution of, representatives of the churches.

While the draft resolution rightly addresses the situation of human rights in Zimbabwe, it fails to make a single reference to land reform issues in Zimbabwe. There is no doubt that the land reform programmes initiated by President Robert Mugabe are aimed at inciting violence and are an attempt by Mugabe to cling to power. They violate the principles of the rule of law and due process of law.

There is no denying that land reform programmes need to be effectively addressed. However, such reform programmes need to be carried out within the parameters of the rule of law. The draft resolution also fails to condemn the illegal land reform programmes.

History of land reform

Land has been a source of political conflict in Zimbabwe since its colonisation. In 1965, the white-dominated government of Rhodesia (as it was then called) granted property rights of huge tracts of the state's most fertile land to white farmers who would use the land for commercial farming. It was thought that the Rhodesian state could become a net-food exporter through this commercial farming. The government hoped that this type of farming would be the primary contributor to the Zimbabwean economy. Very small plots of land, or "tribal reserves", were allotted to the remaining black African majority.

Unsurprisingly, access to land and the economic benefits therein, became the primary source of tension between the white minority and the black majority.

This tension escalated into violence whereby the Zanu-PF and Robert Mugabe emerged as the state's new leader. Within the negotiated peace settlement, the Lancaster House Agreement was implemented in 1980 to give special protection to white landowners for the first ten years of independence.

These protections came in the form of adequate compensation for land acquisitions and assurances that the exchange of land must be guided by the willing buyer-willing seller principle. Land ownership could not be forcibly transferred.

In 1990, released by the ties of the Lancaster House Agreement, the Zimbabwean government amended the provisions of the constitution concerning property rights. With the implementation of the 1992 Land Acquisition Act, the government was given increased power to acquire land for resettlement, subject to the payment of "fair" compensation for the land as set by the government and not by free market principles.

Despite these amendments allowing for government involvement in the transference of land, there were still widespread discrepancies in land ownership. Many of the farms that had been acquired by the government were given to cabinet ministers or more affluent black families and not to the intended beneficiaries - the landless peasantry.

This was the problem confronting the government in 1999 when many of the people demanding economic and political reform came together to form the Movement for Democratic Change (MDC), the political party that was to become the main opposition to Robert Mugabe's Zanu-PF party.

Fearing the rise in popularity and power of the MDC, Mr Mugabe moved the issue of land reform to the top of his political agenda. He, again, campaigned for an amendment to the Constitution that would allow the government to acquire land without compensation.

This act was clearly in violation of the Zimbabwean Constitution, as it would significantly increase the powers of the executive office at the expense of parliament. It also violated the African Charter on Human and Peoples’ Rights, mandating the observation of property rights. The MDC campaigned for a "no" vote to the referendum and defeated it in early 2000 marking the first time in Zimbabwean history that the opposition had defeated a referendum pushed by Mr Mugabe's Zanu-PF party. With the presidential elections barely two years away, Mr Mugabe felt his position was jeopardised by the popularity of the MDC. Land issues were to become a significant factor in the upcoming elections.

Land reform as a political tool

Mr Mugabe, to combat the rising popularity of the MDC, had used the issue of land reform as a tool to stifle political opposition. Through physical intimidation, violence and the arbitrary arrest and detention of individuals, Mr Mugabe has curtailed the freedom of expression. After the referendum amending the Constitution was defeated in February 2000, the Zimbabwean government resurrected the call for radical land redistribution and condoned the new wave of grassroots land occupations that followed. The observance of private property was compromised as landless peasants would often set up residence on commercial farms. The police were told not to respond to the complaints of the landowners and not to remove the squatters from the premises.

In an effort to increase popularity, the government then announced its "fast track" resettlement programme in July 2000 stating that it would acquire more than 3,000 farms for redistribution. The 1990 Land Acquisition Act was amended to state that land could be compulsorily acquired and that the "former colonial power" would compensate the former landowners. The Zimbabwean Constitution mandating the criteria for land acquisition, however, was not changed. Derelict or underutilised farms owned by foreigners holding more than one property were vulnerable to government reclamation.

Between June 2000 and February 2001, the government acquired a national total of 2,706 farms, covering more than six million hectares. The characteristics of these farms, however, did not fit the constitutional criteria for farm acquisition. Under the "fast track" system, the criteria have been largely ignored, as has the constitution. Specifically, the reclamation of farming land revolved more around whether the owner was a supporter of the MDC than whether or not the land fit the criteria for acquisition.

With this practice, Zimbabwe violated Article 21 (2) of the African Charter that states: "dispossessed people shall have the right to the lawful recovery of their property as well as to adequate compensation".

The CERD Committee expressed its concerns stating: "The State party is encouraged to continue its study of land reform measures with a view to implementing [the programme] in accordance with due process of law and in a manner that will enhance the economic and social rights of its citizens" (CERD/C/304/Add.92)

Physical violence and intimidation

In the prelude to the March 2002 presidential elections, there were widespread reports of physical violence and intimidation emanating from land acquisition practices. The US State Department reported that "[r]uling party supporters and war veterans, with material support from the Government, expanded their occupation of commercial farms, and in some cases killed, abducted, tortured, beat, abused, raped, and threatened farm owners, their workers, opposition party members, and other persons believed to be sympathetic to the opposition".

It is understood that the draft resolution of the European Union states that more than one hundred MDC activists have been killed since June 2000.

Arbitrary arrest and detention

Land reform in Zimbabwe has also been used to curtail people's freedom of expression as guaranteed by Article 25 (b) of the ICCPR. The Zanu-PF government introduced the Public Order and Security Act 2001 to suppress political opposition by outlawing public rallies and allowing for the jailing of politicians for long periods of time without trial. It also considers acts such as advocating civil disobedience, publishing false statements prejudicial to the State, and "undermining the authority or insulting the President" as criminal violations. This Act provides the basis for numerous arbitrary incarcerations of political activists.

On 13 March 2002, Robert Mugabe was "re-elected" president of Zimbabwe in an election marred by violence, intimidation and voter corruption. The voice of the people was not heard as Mugabe used his tools of violence, arbitrary arrest and detention to limit free expression of the Zimbabwean people. Using the policy of land reform - a tool meant to empower the people - Mugabe effectively suppressed them. This led to Zimbabwe’s suspension from the Commonwealth for one year.

The draft resolution of the European Union on the human rights situation in Zimbabwe (see box below) is welcome. An attempt should be made to adopt it by consensus.

However, the failure to condemn the illegal land reform programmes in the draft EU resolution is disturbing. The EU is evidently not prepared to address one of the root causes of the problems in Zimbabwe.

Canada: Only just north of the border

IN another standard setting precedent, on 5 April 2002, in a Special Sitting on Palestine the Commission on Human Rights (CHR) authorised the UN High Commissioner for Human Rights, Mary Robinson, to "head a visiting mission that would travel immediately" to the Occupied Palestinian Territory," and return expeditiously to submit its findings and recommendations to the current session of Commission on Human Rights".

Ms Robinson, in her statement to the Special Sitting, said that "[t]he parameters of a visiting mission would be those that apply in fact-finding activities in the United Nations human rights programme, namely, the independence of the members of the mission; freedom to visit places they wish and to speak with those they select; diplomatic immunity; guarantees of safety and security, and the faithful cooperation of the parties."

While the United States took a backseat at the Special Sitting, it was quite clearly the puppeteer for its northern neighbour. Canada invoked the rules of procedures to ensure that the Special Sitting went beyond 6pm so that the proceedings could not continue without translation thus preventing a resolution from being adopted.

In a last ditch attempt to block action by the CHR, Canada - always silent during the Asian group's attack upon NGO participation - became the champion of NGO voice in the plenary. Given time constraints, the Pakistani Ambassador requested the suspension of NGO interventions, or, at least the postponement of such interventions until after the adoption of a resolution. As Canada insisted on NGO participation, a vote was sought, which it lost. Canada also raised an objection under rule 52 of the Rules of Procedure, requiring circulation of draft resolutions 24 hours in advance unless otherwise decided by the Commission. This too was rejected by a roll call vote. Finally, the resolution on the situation of human rights in the Occupied Palestine Territory (E/CN.4/2002/L.13) was adopted with 44 in favour and two against with seven abstaining.

The proceedings at the Special Sitting reflect the difficult back-room negotiation processes that have followed the High Commissioner's intervention on 2 April 2002.

Following Ms Robinson's address, Malaysia, as President of the Organization of the Islamic Conference (OIC), proposed a special session devoted to the present situation in the Occupied Palestinian Territories. The Chairman of the Commission, Ambassador Krzysztof Jakubowski of Poland, said that the Bureau of the Commission would meet the next morning to discuss the High Commissioner's suggestions and the OIC  proposal.

Since the presentation of the High Commissioner's report, the CHR proceedings have been delayed due to opposition from some members of the Western group during the daily extended Bureau meetings. The United States and Israel had initially opposed the Special Sitting. Later, they also stated their opposition to a formal outcome on the grounds that the High Commissioner could undertake a mission to the Occupied Territories in the normal conduct of her work. The delegations of Australia and Canada had strongly supported the US-Israel opposition to an outcome.

Obstructionism in respect of the High Commissioner's mission to the Occupied Territories follows a fortnight of interference by the Western group - again at the behest of the US and Israel - in respect of the region. The report of the Special Rapporteur on the right to adequate housing on his mission to the Occupied Territories has been blocked. While many Western diplomats continue to deny that a legal opinion has been requested, informed sources have confirmed that a legal opinion has indeed been sought from New York as to whether the report, that was scheduled to be presented at the 57th session, can be presented at the 58th session. Even though, the Special Rapporteur is due to leave Geneva early this week, no decision has been reached as to the presentation of his report. The majority of CHR members have yet to express a view on this matter.

Had the High Commissioner undertaken a visit to the Occupied Territories without the authorisation of the CHR, she would have been criticised for politicising the issue. Procedural issues would have been raised to block her presentation at the Commission. Moreover, more than the High Commissioner's statements, it is the CHR's authorisation that represents the voice of the international community and reflects concern for the deteriorating human rights situation.          

The unqualified support of Australia and Canada, and the partial support of the United Kingdom and New Zealand, for the US and Israel position reflects poorly on the Western Group. While the US has always supported the Israeli government, the processes leading up to and during the Special Sitting reveal other members of the Western group in a new, unflattering light.

There is palpable frustration in governmental and non-governmental circles on account of the shadow cast over the CHR by the Israel-Palestine situation. Attention on this issue has been at the cost of consideration of other human rights situations. Due to budgetary constraints, many NGOs attending the CHR have had to leave without making their planned interventions under Item 9. Many others are scheduled to leave soon.

However, the delaying tactics adopted by some members of the Western group to block the report of the Special Rapporteur on adequate housing, and their failure to "let conscience move in this situation", as the High Commissioner put it, have tainted the contribution of western countries at this CHR. While the voting by a number of European countries in support of the resolution on Palestine has restored the image of the European Union to some extent, the European Union is yet to raise the issue of the blocking of the Special Rapporteur on adequate housings' report.

It is also pertinent to ask if the Western bloc would have remained silent if the report was on a situation other than Palestine.

The European Union is viewed as the conscience of the CHR for its willingness to sponsor country resolutions on oppressive regimes. It played a critical role in the creation of United Nations human rights mechanisms, including the special procedures. If EU members succumb to pressure by Israel, Canada, the US and Australia, the EU will be an accomplice to the damaging of the special procedures.

The effects will be felt beyond the Middle East and this session of the Commission on Human Rights.

‘Ashamed of the government of Canada’

Diana Bronson & Leilani Farha

When we got to the UN Commission on Human Rights, we did not expect to agree with the Government of Canada on all - or even most - issues.

It is quite standard for non governmental organisations to differ from governments, and we expect governments to adopt positions that are not as strong as we would like.

As Canadians however, we do expect a certain minimal degree of integrity and commitment to the basic human rights principles and procedures which are the basis of the UN human rights system, now over fifty years old. We expect a country like Canada to stand up for those principles and for it to be interested in receiving a complete picture of the human rights situation in any given context.  In fact, Canada is bound by international law to do so.

The annual session of the UN Commission on Human Rights is the cornerstone of the UN human rights system. Each spring it meets to consider the major human rights issues of the day, to hear reports from experts it has appointed to investigate various issues and to debate resolutions and actions that the international community can take.

Over the years, debates have become quite politicised and on many subjects the member states of the Commission have disappointed human rights defenders. One can think for example of the consistent failure to adopt a resolution on human rights in China, the less than satisfactory language on Colombia, or the long and drawn out discussions regarding an instrument to protect indigenous peoples rights or the ten years it has taken to devise a mechanism to help victims of torture get justice.

There have, however, also been successes at the Commission. Resolutions in recent years on women's housing rights, forced evictions, violence against women and the appointment of a special rapporteur on this issue, excellent reports by many of the independent experts and special rapporteurs on both country and thematic issues, a process that is relatively open to civil society input and the courageous leadership of Mary Robinson and her office on a wide range of issues have increased the credibility of the Commission, its profile and its impact.

This year the Commission faces a number of challenges. As delegates in Geneva debated options, violence and deaths in Israel and Palestine escalated to unprecedented heights. One would think that in such a situation, it would be vital to have the presence of the United  Nations human rights protection system:  to monitor, to document, to play a dissuasive role and to report back to states about the situation on the ground.

This is indeed the position of the UN  High Commissioner for Human Rights, Mary Robinson, who proposed after a week of debate that such a mission be sent. This would be similar to the  High  Commissioner's actions in Kosovo and Sierra Leone and completely consistent with her mandate.

This suggestion was welcomed warmly by the vast majority of members of the Commission.  The European Union urged the Commission to "react swiftly" and stated that such a mission would enable the Commission to make a "meaningful contribution to the solution of urgent human rights and humanitarian problems".

Pakistan proposed a resolution which supported the mission.

  What did Canada do ?

First it suggested that there was no need to have a special session to consider this issue.  It lost.

Then it attempted to block debate on the resolution on procedural grounds.  It lost again.

Finally,  when push came to shove and a vote was called, Canada voted against the resolution that mandated Mary Robinson to undertake a mission.  Canada and Guatemala were the only two countries to vote against this resolution, both being  perceived as proxies for the United States on this issue (the USA is not a voting member this year).  Seven countries abstained. But overwhelmingly the Commission members from all areas of the world voted in favour of the resolution because they understood the urgency of the situation.

Canada argued that the Security Council was seized of the issue.  But that should not stop the Commission from looking at it, since human rights are such an important dimension of the problem. Canada argued that the security of foreign observers could not be guaranteed (presumably Canada also then opposes the visit of Colin Powell). These arguments ignore the fact that Canada has often sent its own high level missions and human rights observers to desperate civil war situations such as Rwanda, not to mention that UN security is well placed to evaluate the risks itself.

Earlier in the week, Canada used procedural grounds to block the official release of the UN Special Rapporteur's Report on the Right to Adequate housing, which documented his visit to Palestine.

There too, Canada and Guatemala were isolated,  and their position was denounced in strong terms by international NGO coalitions working on the right to adequate housing.

The key issue in this matter is that Canada has actively tried to obstruct the gathering of credible information on human rights in Israel and Palestine at a time when objective information and international presence are sorely needed.

That is the source of our shame.

  - Diana Bronson works for Rights & Democracy

- Leilani Farha works for CERA - Centre for Equality Rights in Accommodation in Canada.

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Out in the cold: Who will defend the Uighurs?

Few minority groups internationally are as isolated as the Uighurs of the Xinjiang Uighur Autonomous Region (XUAR) in China. A Turkic Muslim ethnic minority, they are denied religious freedom, and are routinely subject to arbitrary arrest, detention and torture. While the events of 11 September 2001 have provided a useful pretext for the suppression of minority rights everywhere, in few places has the repression been as calculated and opportunistic as in XUAR.

Adding to the woes of the Uighurs is the fact that they have been effectively forsaken by the Muslim world: some bonds, it seems, are strong than those of the Muslim Umma, or brotherhood..

The "history of savage repression by the Beijing authorities" in XUAR, as a UK House of Commons Select Committee recently described it, is chronically underreported. Despite Mao Tse-tung's pledge that national minorities would enjoy considerable freedom under communist rule, the overwhelming priority for the Chinese authorities since 1949 has been national unity. In 1955, the XUAR was established under Beijing's control, with the veneer of provincial governance. In reality, XUAR is autonomous in name only.

The XUAR is strategically important for China. Its largest province, the vast majority of Chinese nuclear testing occurs in the Taklamakan Desert of XUAR, where there is always a strong military presence. The XUAR also holds most of China's oil deposits. 

In an effort to control XUAR, the government has orchestrated a programme of transmigration of ethnic Han into the region. In 1949, there were 300,000 Hans in XUAR. The Chinese government census figures for 2000 reveal that there are now 7.49 million. In its periodic report to the Committee for the Elimination of Racial Discrimination (CERD) in 2001, the Chinese government noted that it pursues a "special family planning policy… for ethnic minorities. In most regions inhabited by ethnic minorities two or three children are allowed" (CERD/C/357/Add.4 Part I, paragraph 103). 

Despite this policy, the total number of Hans in XUAR increased by 31.6 per cent in the 1990s, more than twice the population growth of local ethnic minorities. In the face of such a determined transmigration policy, the Uighurs are struggling for cultural survival. This is compounded by the suppression of expressions of Uighur identity and their religion, Islam.

The Government of China has an avowed policy on minorities, which calls for preferential treatment for national minorities in marriage regulations, family planning, university admission and employment. However, in practice they are discriminated against in favour of Han Chinese.

In its 2001 periodic report to CERD, the Chinese government stated that "'The State Economic and Trade Commission has given priority to the economic development of minority areas"  (CERD/C/357/Add.4 Part I, paragraph 29). In effect, while Beijing does invest in the XUAR, ethnic Hans benefit disproportionately from government programmes and economic growth. Indeed, many development programmes have disrupted the traditional living patterns of the Uighurs, who are mostly farmers.

The Uighurs also suffer from institutional discrimination. Uighur children, for example, may attend their own schools, but the language of instruction is Chinese. On the whole, Uighur schools are so poorly funded that they are totally devoid of equipment.

The terrorist threat

For years, Beijing has been trying to cast the Uighurs as terrorists. Following 11 September 2001, the Chinese authorities simply linked the Uighurs to the Taliban and Al Qaeda (although the claims are unsubstantiated) and declared China’s commitment to the US war against terror.  In his address to the annual session of the national parliament in early March, Chinese Premier Zhu Rongji emphasised his country's role in the international effort to combat terrorism, and pledged to fight "terrorism in all its forms". In translation, this means harsher treatment of the Uighurs.

While it is true that autonomous movements in XUAR have strengthened in the 1990s, statistics of the Chinese government, released in December 2001 belie the seriousness of the alleged terrorist threat.  According to the government's own figures, 40 people have been killed in XUAR, and 330 have been injured since the early 1990s.  Hardly major activity by anyone's standards.

As Amnesty International has recently observed, the Chinese authorities are simply using "the subjective yardstick of 'terrorism'… to detain a broad range of people, some of whom may have done little more than practice their religion or defend their culture."

The transparency of the Chinese campaign against the Uighurs was highlighted by the High Commissioner for Human Rights, Mary Robinson in her November 2001 visit to China. The High Commissioner urged China not to use the war against terror as a pretext to suppress ethnic minorities. "I am worried specifically about the Uighur population in the province of Xinjiang", she said.

Freedom of religion

Article 36 of the 1982 Constitution of the People's Republic of China promises "freedom of religious belief" and protection of "normal religious activities". Islam is one of the five officially recognised religions, which is monitored by a government-affiliated association. Religious observance of Islam is thoroughly regulated. Only officially approved mosques, imams and Islamic schools may operate. Imams must be accredited by the authorities and must reregister each year. Imams who refuse to include official Chinese religious propaganda and patriotic appeals in their teachings are not only deregistered, they are often arbitrarily detained. The government regularly exercises its "right" to close mosques and Muslim schools.

The government bans all personal religious practices in state-controlled buildings.  Students in State-run schools and universities are formally disallowed to pray, fast during Ramadan or show any manifestations of their faith. Women are not allowed to wear headscarves.

In its Concluding Observations on China in August 2001, CERD noted: "…some members of the Committee remain concerned with regard to the actual enjoyment of the right to freedom of religion by people belonging to national minorities in the State party, particularly in the Muslim part of Xinjiang and in Tibet" (CERD A/56/18, paragraph 244).

Since 1994, the UN Special Rapporteur on religious intolerance, Abdelfattah Amor has similarly made recommendations to the Chinese government on the treatment of the Uighurs.

The link between a distinct religious identity and separatism has been constantly confused by Beijing. A campaign against "splittists" and religious extremists commenced in 1997, and saw unprecedented repression of the Uighurs. China makes no distinction between political and criminal acts, nor does it distinguish peaceful political dissent from violent opposition. 

The 'Strike Hard' campaign has involved the arrest, detention and imprisonment, in some cases execution, of thousands of Muslims in XUAR. When trials are held, they are often held in camera and accused people are denied legal counsel. According to official figures, by May 2001 the authorities were prosecuting over 3,000 cases and massive public sentencing rallies attended by more than 300,000 people had been held in the region. 

The government also deals harshly with Muslims who engaged in political speech or activities. The case of Rebiya Kadeer is one in point. In August 1999, Rebiya Kadeer, a prominent Uighur businesswoman and former member of the provincial level Chinese peoples' Political Consultative Conference was arrested in XUAR. In March 2000, she was sentenced to eight years imprisonment for passing "State intelligence" information to foreigners. Rebiya Kadeer was planning on giving a US Congressional Researcher some official newspaper reports and a list of cases being considered in the courts.

In truth, Rebiya Kadeer is behind bars - where she is being denied medical care and has allegedly been physically abused - because she spoke out against policies that favoured Han in Xinjiang, and because of her activities promoting the wellbeing of the Uighur people.

In an opinion adopted on 27 November 2000, the Working Group on Arbitrary Detention concluded that the detention of Rebiya Kadeer is arbitrary (Opinions of the Working Group on Arbitrary Detention, E/CN.4/2002/77/Add.1, Opinion No. 30/2000).

There is no question that violations of religious freedom have increased substantially in the past few years. Under the cover of the war against terror, the campaign of arrest, detention and torture of Uighur people has intensified. During Ramadan in December 2001, ideological indoctrination was stepped up; praying and fasting was prohibited outright.

It would seem that there is no reprieve in sight: on 11 March 2002, China's head judge Xiao Yang vowed to increase the crackdown against terrorists.

Torture and executions

Cases of torture in China are well documented by Amnesty International. Torture is however particularly pernicious in XUAR, as repeatedly noted by the Special Rapporteur on torture. In his report to the 57th session of the Commission, the Special Rapporteur noted "methods of torture specifically used in the XUAR, namely the use of injections which cause victims to become mentally unbalanced or to lose the ability to speak coherently; the insertion of pepper, chilli powder or other substances in the mouth, nose or genital organs; and the insertion of horse hair or wires into the penis." He further noted reports that "90 per cent of defendants who appear in court tell the judges that they have been subjected to torture in police custody to extract confessions. These statements are said to be ignored by the judges." (E/CN.4/2001/66, paragraph 238).

It is not just torture that is rife; Amnesty International reports that XUAR is the only region in China where executions of political prisoners are known to have taken place in recent years. Human Rights Watch notes that at least 24 people in XUAR, mostly Uighurs, were executed for alleged terrorist activities in 2001. The Special Rapporteur on extrajudicial, summary or arbitrary executions has repeatedly drawn attention to "grave human rights abuses " perpetrated against the Uighur community in China (E/CN.4/2001/9, paragraph 45)

The way forward

The deteriorating treatment of the Uighur is particular disappointing given some potentially positive messages coming out of Beijing. On 20 November 2000, the Chinese authorities signed a Memorandum of Understanding (MOU) with the Office of the High Commissioner for Human Rights, designed to assist China in complying with its ICCPR and ICESCR obligations. However, as noted by Mary Robinson on 26 February 2001 "The MOU is not an end in itself. Its success will be judged by the practical results achieved". However China's treatment of the Uighurs demonstrates that economic and strategic politics win out over minority rights.

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Redundant resolutions: Killing CHR softly

As HUMAN RIGHTS FEATURES goes to print, copies are circulating of draft resolutions on three new mechanisms - special rapporteur on highest attainable standards of health, special rapporteur on cultural identities and special rapporteur on Africans and African descent. Last year, the Commission on Human Rights (CHR) adopted 119 resolutions and decisions. A large majority of them had budgetary implications.

At the end of the third week, with the CHR only just beginning Item 9 and no night sessions, the need to increase the efficiency of the CHR has never been more acute. With the CHR about one and a half weeks behind schedule, it remains to be seen how the Bureau will steer the remaining session. However, the proceedings this year will have serious implications for future sessions of the CHR.

Selectivity, not only by the developing countries, but also equally by many in the Western group, has crippled many of the mechanisms of the CHR. Since the first special procedure - the Working Group on Enforced and Involuntary Disappearances was established in 1980 - the CHR has adopted numerous special procedures on civil, political, economic and social rights. The special procedures are one of the most effective mechanisms of the CHR: they allow the monitoring of the human rights records of States, irrespective of whether States are parties to treaties.

As most of the special procedures were initially focused on civil and political rights issues, the Like Minded Group (LMG) countries-with the assistance of Cuban expertise on rules of procedures-have been responsible for the proliferation of redundant resolutions, to the detriment of the effectiveness of the CHR and its mechanisms. However, LMG countries are not alone in this obstructionism, although they sponsor the majority of redundant resolutions. If the CHR is to remain effective, some soul-searching by all regional blocs is required.

In part, the LMG's agenda is motivated by a desire to silence NGO criticism of their human rights records. Unless the CHR reviews its workload, NGOs are destined to bear the brunt of the speaking time restrictions, which will inevitably follow.

ECONOMIC & SOCIAL RIGHTS RESOLUTIONS

In the last three years, three specific special procedures on economic and social rights - the right to education, adequate housing and food - have been developed. Yet, a large number of mechanisms were developed earlier, aimed at apportioning the responsibility for poverty and denial of economic and social rights on the developed countries (the Western bloc plus Japan). These resolutions resulted in a waste of the Office of the High Commissioner for Human Rights'  scarce resources, without any tangible progress on a range of issues.

The preambular paragraph of the CHR resolution 2001/26 on "human rights and unilateral coercive measures" (principal sponsor: Cuba) states that unilateral coercive measures "create[s] obstacles to trade relations among States and impede[s] the full realization of all human rights, and also severely threaten[s] the freedom of trade" and is one of the obstacles to the implementation of the Declaration on the Right to Development. In its operative paragraph, the resolution "invited the Open-ended working group established to monitor and review progress made in the promotion and implementation of the right to development to give due consideration to the question of human rights and the negative impact of unilateral coercive measures."

The substance of resolution 2001/26 indicates that it is a matter related to the right to development. The United Nations General Assembly is the appropriate body to discuss the issue and the GA has passed numerous resolutions on unilateral coercive measures. The request to the Secretary-General to submit a report requires financial resources. To reduce wastage of resources, the issue could easily be inserted under the resolution on the right to development, reflecting the concerns of resolution 2001/26. Both the Independent Expert on the right to development and the Working Group on the Right to Development can consider human rights implications of unilateral coercive measures

Similarly, while the CHR resolution 2001/27 on "Effects of structural adjustment policies and foreign debt on the full enjoyment of all human rights, particularly economic, social and cultural rights" (principal sponsor: Pakistan) is a critical issue. It falls under the right to development. There is no need for a separate working group on the issue as the Working Group on the Right to Development could deal with the issue.

The most inappropriate and ineffective mechanism at the CHR is the Special Rappporteur on "adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights". This resolution absorbs considerable, limited resources of the OHCHR.

It is essential that this redundant resolution not be renewed. It is often the governments that accept the dumping of toxic waste in exchange for money, and their diplomatic representatives at the CHR, that make the biggest brouhaha about this human rights non-issue. Indeed, references to human rights in the Special Rapporteur's report are almost imperceptible. The United Nations Environment Programme has the expertise to deal with such environmental issues in a more effective manner.

RESTRICTED MANDATES

There are two specific mandates that have been rendered ineffective due to their restricted mandate. CHR resolution 2001/31 on "human rights and extreme poverty" (principal sponsor: France) is the classic case of a redundant resolution. If one is poor, one does not have access to most rights. A resolution on the mainstreaming of human rights would adequately cover the substance of this resolution, while broadening its scope. The CHR resolution 2001/3 on "the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination" also has a restrictive mandate. The use of mercenaries is still prevalent. However, there are also "domestic mercenaries" and vigilante groups, mostly consisting of surrendered armed opposition groups, which are used by many States in internal armed conflict situations. The issue of scrutiny of the new multinational security companies will also need to be addressed. Unless the Special Rapporteur's mandate is broadened, this particular mechanism will continue to be ineffective.

...AND STATING THE OBVIOUS

There are many recommendations adopted by the CHR that require little elaboration of existing international standards. The CHR adopts many such redundant resolutions that are already implicit in existing standards.

The central message of the CHR resolution 2001/36 on "Strengthening of popular participation, equity, social justice and non-discrimination as essential foundations of democracy" (principal sponsor: Cuba) is that "while all democracies share common features, there is no one universal model of democracy". This resolution, in addition to being self-serving, is costly and redundant.

The resolution 2001/41 on "Continuing dialogue on measures to promote and consolidate democracy" (principal sponsor: Romania) is similar to the above resolution. It includes a request for the OHCHR to organise an expert seminar, with resources raised from voluntary contributions.  Since the OHCHR began raising voluntary funds through the annual appeal, States have tried to capitalise on the funds, which are intended for specific programs and projects.

The CHR resolution 2000/50 on "tolerance and pluralism as indivisible elements in the promotion and protection of human rights" (principal sponsor: India) is nothing but a reiteration of existing international standards. The report submitted to the 58th session is self-explanatory. Surprisingly, the resolution was sponsored by a delegation representing a government not famed for its tolerance of minorities. The politics of the resolution is similar to Cuba's emphasis on "no one universal model of democracy" and the United States practice of "consensus" at the CHR.

The few substantive issues contained in the CHR resolution 2001/73 on "human rights and international solidarity" (principle sponsor: Cuba) can be dealt under the resolution on right to development.

The CHR decision 2001/115 pursuant to CHR resolution 2000/63 on "Human rights and human responsibilities" (principal sponsor: Malaysia) can be viewed as an extension of the Asian values promoted by Malaysian Prime Minister Dr Mahathir Mohammed, and an attempt to counter the resolution on human rights defenders.

The CHR resolution 2001/71 on "the role of good governance in the promotion of human rights" is superfluous as respect for human rights is a part of good governance. Is good governance somehow divorced from human rights?

The CHR decision 2001/112 on "fundamental standards of humanity" (principal sponsor: Norway) is redundant. Such standards are already found in international humanitarian law. While historically, non-international armed conflicts have been under-governed by humanitarian law, the emerging jurisprudence of the International Criminal Tribunal for the Former Yugoslavia has affirmed the extension of the customary international laws of war to non-international armed conflicts.

In any event, it is the International Committee of the Red Cross and the High Contracting Parties to the Geneva Conventions that should be seized of the matter, not the CHR.

In view of the lack of resources, the decision of the CHR 2001/111 on "science and the environment" (principal sponsor: South Africa) to organise a seminar by the OHCHR and the United Nations Environment Programme to review and assess progress achieved since the Conference in promoting and protecting human rights in relation to environmental questions and in the framework of Agenda 21 (A/CONF.151/26/Rev.1, Vol. 1 and Corr.1, resolution 1, annex II) is another instance of the proliferation of resolutions.

The CHR resolution 2001/4 on "combating defamation of religions as a means to promote human rights, social harmony and religious and cultural diversity" (principal sponsor: Pakistan) is another example of a self-serving and superfluous resolution. The CHR resolution 2001/65 on "the promotion of a democratic and equitable international order" (principal sponsor: Cuba) is not an issue, and certainly not one for the CHR.

Redundant Country Resolutions

At the end of third week, the United States is reportedly yet to find a CHR member to sponsor the resolution against its bete noire, Cuba. The Czech Republic, traditionally the principal proponent has reportedly refused to sponsor the resolution. The US is said to have approached Peru, with no result.

The CHR has adopted several resolutions against Cuba, and has rightly called upon the Government of Cuba to cooperate with other mechanisms of the CHR and to grant invitations to the thematic mechanisms to visit Cuba. However, this sits poorly with US support for Israeli non-cooperation with the thematic mechanisms in respect of its human rights record in the Occupied Territories. While Cuba certainly needs to engage with the UN to improve the protection of human rights, the Western group has repeatedly failed to sponsor a resolution on human rights situation in Turkey, a close ally and member of NATO.

The US State Department Country Report for Human Rights Practices on Turkey for 2001 reported, "Extrajudicial killings continued, including deaths due to excessive use of force and torture.  Torture, beatings, and other abuses by security forces remained widespread… The lack of universal and immediate access to an attorney, long detention periods for those held for political crimes (particularly in the state of emergency region), and a culture of impunity are major factors in the commission of torture by police and other security forces". Limits on freedom of speech and of the press remain a serious problem.  The findings of the UN Special Rapporteur on right to education of her mission to Turkey are telling.

Similarly, while Iran needs to be censured at the CHR, the EU needs to take cognisance of the fact that President Mohammad Khatami was elected to a second four-year term as President in a popular election in June 2001, with 77 percent of the vote. At the same time, the Western bloc repeatedly fails to sponsor a resolution on the human rights situation in Saudi Arabia, which remains equally, if not more repressive in a State that never holds elections at any level. (see story Rule of law draws the line at human rights)

The country resolutions at the CHR are one of the most effective ways of censuring countries for human rights violations, expressing international concern and engaging in dialogue. However, the efficacy of such resolutions needs to be evaluated. The European Union's reluctance to sponsor a resolution on Cuba confirms the need to engage in different ways, through means other than country resolutions.

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SAUDI ARABIA

Rule of law draws the line at human rights

On 10 March 2002, the Arabic-language newspaper Al-Madina carried an unusual item - a poem titled "The Corrupt on Earth," penned by Saudi poet Abdel Mohsen Musallam. It accused judges in Saudi Arabia of accepting bribes and ruling unjustly to please the "tyrants."

It clearly failed to inspire Saudi Arabia's rulers. Mr Musallam was jailed, but the details of the charge against him are not clear. The editor-in-chief of Al-Madina, Mohammed Mokhtar al-Fal, was dismissed from his post.

Freedom of expression is not the only right  denied to its citizens by the Saudi Arabian government. International human rights organisations continue to receive reports of the use of torture and ill-treatment in the country's prisons. The death penalty is awarded in an alarming number of cases. Freedom of religion is non-existent. The civil and political rights of women are restricted.

The government's conception of human rights is based solely on the Sharia, or Islamic law. Article 26 of the Basic Law of Government holds that "[t]he State shall protect human rights in accordance with the Islamic sharia."

Adherence to international human rights instruments and cooperation with international mechanisms is therefore minimal. Saudi Arabia is yet to sign the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). In its stark disregard of these fundamental rights instruments, Saudi Arabia is in the illustrious company of States such as Cuba, Pakistan, Bhutan, Malaysia, Indonesia, Singapore and Myanmar.

It has so far ratified only four international conventions - the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1997, the Convention Against Torture (CAT) in the same year, the Convention on the Rights of the Child (CRC) in 1996 and the Convention on the Elimination of Discrimination Against Women (CEDAW) in 2000. It has also entered sweeping reservations to these treaties and declared that in case of contradiction between the Conventions and the norms of Islamic law, the kingdom is not under obligation to observe the contradictory terms of the Convention.

Right to Life

The law provides for the awarding of the death penalty. Human Rights Watch, quoting statistics compiled by the Reuters news agency, reported that some 121 Saudi citizens and non-Western foreigners were executed by beheading in Saudi Arabia in 2000 after convictions for murder, armed robbery, rape, drug trafficking, and other offences.

At least 75 people were beheaded in 2001 as of mid-November, according to the same tally. There was little information about the trials, including evidence of their guilt, if any.

The death penalty is applied for a wide range of offences including sorcery, certain sexual offences, drug-related offences and apostasy.

The trials are not public, and fall short of internationally agreed standards. Defendants do not have the right to be represented by a lawyer and can be convicted solely on the basis of confessions obtained under duress, torture or deception. Executions are also carried out by stoning and by firing squad. Amnesty International recorded 79 executions in Saudi Arabia during 2001. From January 2000 to December 2001, Amnesty International reported in January 2002, at least 202 people were executed. So far in 2002, the report notes, Saudi Arabia has executed at least three people.

Torture, Cruel, Degrading Punishment

There is no unequivocal prohibition of torture in Saudi Arabian law. The government of Saudi Arabia, in its report to the Committee Against Torture in February 2001, referred to the Prison and Detention Regulations that "guarantee the rights of [prison] inmates and prohibit, in particular, all forms of aggression against prisoners or detainees, the perpetrators of which are liable to a deterrent penalty."

Human rights organisations nevertheless report continuing abuses. According to Amnesty International, "[s]ystematic torture and ill-treatment in Saudi Arabian prisons and police stations" and "the authorities fail to ensure prompt and impartial investigations."

The courts routinely hand out cruel, inhuman and degrading punishments, including whipping and amputations. According to Human Rights Watch, an Interior Ministry statement listed, among other recent punishments, the removal of the right hand of a Bangladeshi man in September 2000, after he was convicted of robbing pilgrims at Mecca's Grand Mosque. In August 2000, a court ordered the surgical removal of the left eye of Egyptian Abd al-Muti Abd al-Rahman Muhammad after he was convicted of throwing acid in the face of another Egyptian.

Arbitrary arrests and detentions

Arbitrary arrests are prohibited by Saudi Arabian law; however, according to the US State Department country report on Saudi Arabia, such arrests do occur. The Mutawwa'in, or the religious police, it says, are "free to intimidate and bring to police stations persons whom they accuse of committing 'crimes of vice' based on their own religious interpretations."

The Special Rapporteur on extrajudicial, summary or arbitrary executions, Ms Asma Jahangir, reported a case in which a woman was reportedly sentenced to death for the murder of her employer (E/CN.4/2002/74). The woman, Siri Zaenab binti Duhri Rupa, received no legal assistance during the trial.

On 29 March 2001, the Special Rapporteur sent an urgent appeal together with the Special Rapporteur on migrants calling on the Government of Saudi Arabia to exercise its authority to stay Ms Duhri Rupa's execution, so as to allow a thorough review of her case. 

The Government of Saudi Arabia replied that Ms Duhri Rupa was indicted after questioning and that she had explicitly confessed to the offence.  She was sentenced to death but the sentence had not yet been carried out, pending the attainment of the age of majority by the murdered woman's eldest child, who may agree to accept financial compensation or pardon the victim.

Freedom of religion & religious minorities

Islam is the official religion in Saudi Arabia. Non-Muslims must not carry out their religious activities or rituals in public, and can only worship privately. Private worship, moreover, is inadequately defined - however, there are no explicit guidelines on what constitutes private worship. Human rights organisations report persistent discrimination against religious minorities.

Reports of persecution of religious minorities were also received by the Special Rapporteur on religious intolerance Abdelfattah Amor. On 24 April 2000, at Najran, security forces reportedly clashed with members of the Ismaili community. According to the Saudi press agency, these incidents were linked to the arrest of a sorcerer, which apparently led to Ismaili demonstrations. The clashes reportedly caused the death of one person and the wounding of four others. According to the Special Rapporteur, other sources had claimed that the Ismailis were actually protesting against the closing of an Ismaili mosque by the religious police.

The US Commission on International Religious Freedom, after visiting Saudi Arabia in 2001, reportedly repeated its call that the Bush administration designate Saudi Arabia a country of "particular concern" with regard to religious freedom issues. But for the second year in a row, the kingdom was not among the countries that the State Department so designated in October 2001.

Treatment of migrants and foreign workers

Foreign workers come from Asia and Africa, and comprise about two-thirds of the work force of Saudi Arabia. Their passports are generally retained by their Saudi sponsors. The sponsors may also ask the authorities to prohibit employees from leaving the country until any dispute - legal or commercial - is settled. Foreign workers are not allowed to form trade unions or engage in any form of collective bargaining, effectively leaving them with no means of airing their grievances. Foreign women who work as domestics for Saudi families must often contend with denial of salary, insufficient food, poor living conditions, long hours of work, and little time off. Many also suffer abuse at the hands of their employers, including forced confinement, beatings and rape.

Women

The rights of women are severely restricted. A woman's testimony in a Sharia court is only equal to half that of a man's. In divorce and family law cases, women cannot speak on their own behalf; they must depute a male relative to do so. They have few political