TABLE OF CONTENTS

58th CHR: In the shadow of ‘war against terror’  

New, improved benchmarks unlikely; focus should be on halting erosion of existing standards

FOR the first time in the history of the Commission on Human Rights (CHR), the United States of America will sit out the session, having been voted off CHR membership in 2001. And, with the only State to have consistently opposed motions of censure against Israel out of the CHR, the Commission may yet adopt a unanimous resolution against Israel. However, numerous resolutions passed previously, including one during the Special Session of the CHR on Palestine in 2000, have failed to halt the violence in the Middle East. To this end, the CHR must seriously consider measures to give effect to its 2000/69 resolution on the Promotion of the Right of Peoples to Peace and the 1984 UN Declaration on the Right of Peoples to Peace.

In view of the serious violations of human rights in the course of the ‘war against terror’ declared by the US and its allies, the European Parliament's recent resolution - (‘Preparations for the March 2002 meeting of the UN CHR in Geneva’)  - is significant. It calls on the EU Presidency to “sponsor or co-sponsor resolutions on fundamental rights and freedoms versus anti-terrorist legislation and practices” during the 58th session.

It comes at a time when States such as the US, the UK and India are putting in place a slew of measures undermining the cardinal principles of criminal justice such as the due process of law, presumption of innocence, and safeguards against self-incrimination.

High Commissioner Mary Robinson's repeated emphasis on the need to respect human rights and humanitarian laws in the ‘war against terror’ has not endeared her to those who are seeking to circumvent internationally accepted human rights standards. If the High Commissioner decides to accept a second term - a move that will be welcomed by the human rights community - States can expect to continue to be gently but firmly reminded of their obligations. In the event that she does not, however, the task will be left to her successor. And the portents as regards the likely choice of a successor so far are ominous.

Although, the United States is not a member of the Commission, the exigencies of its ‘war’ are bound to have serious implications for key human rights issues. The CHR at its 57th Session passed a resolution (2001/24) on the ‘Situation in the Republic of Chechnya of the Russian Federation.’ Although the European Parliament in its earlier resolution called on the EU Presidency to sponsor resolutions on “China, in particular addressing the situations in Tibet and Inner Mongolia, and Russia, in particular addressing the situation in Chechnya”, the removal of the item on Chechnya later from the agenda of the coming plenary session of the European Parliament indicates that such issues may not be addressed at the CHR.

Furthermore, given the realpolitik of the loosely held US-led coalition against terrorism, human rights violations in places like Chechnya may not be the flavour of the month in Geneva. Rather, the Commission is likely to adopt resolutions against Iran, Iraq, Zimbabwe, the Great Lakes region (including Burundi and the Democratic Republic of Congo) and Indonesia, as well as Colombia, Burma and North Korea. The Core Group composed of Australia, Nigeria and South Africa formed at the recent Commonwealth Heads of Government Meeting to determine the status of Zimbabwe in the Commonwealth will be replicated in the backrooms of the Commission. It is another matter that Pakistan, which has been suspended from the Commonwealth is a key partner in the US-led alliance. Rights violations in that country are a major cause for concern, and, in a further threat to civil liberties, the government, in an attempt to emulate the US, has provided for the inclusion of military personnel in the panel of judges trying terrorist offences.

The CHR is likely to pass standard resolutions on racism, racial discrimination, xenophobia and related intolerance; development; torture and detention; disappearances and summary executions; freedom of expression; independence of the judiciary; administration of justice; impunity; religious intolerance; conscientious objection to military service; violence against women; migrant workers; mass exoduses and IDPs; indigenous peoples; human rights defenders; cooperation with UN treaty bodies; and advisory services and technical cooperation in the field of human rights.

But it is unlikely to adopt new standards or special procedures. Nonetheless, the challenge is to halt the continuing erosion of existing standards reflected, for example, in the inability of the Sub-Commission to adopt country-specific resolutions and to refer to specific countries in thematic resolutions under the Review of Mechanisms. The adoption of a resolution on Human Rights and Human Responsibilities to counter the work of the Special Representative on Human Rights Defenders is another indication of the fact that States are still unwilling to accept monitoring by human rights defenders or UN mechanisms.

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Israel & Palestine: Rights in a state of emergency

The 58th CHR session must focus on the human rights dimension of the Middle East conflict

THE weeks leading up to this session of the Commission on Human Rights have witnessed unprecedented violence in Israel and the Palestinian Occupied Territories. Seventeen months into the intifada, over one thousand people have been killed and in excess of 20,000 have been injured, the vast majority of them Palestinians. The escalation in the conflict has invariably resulted in an intensification of violations of human rights as well as international humanitarian law. The Occupied Territories will be very much on the agenda of this Commission.

The Commission on Human Rights needs to focus on human rights dimension of the Middle East conflict. The difficult security situation faced by Israel does not justify its derogation from protection of basic human rights. Article 4 of the International Covenant on Civil and Political Rights (ICCPR), to which Israel acceded in 1991, provides that a state of emergency cannot justify violations of rights such as the right to life and freedom from torture.

Several reports concerning the Occupied Territories have been submitted to this session of the Commission. Most have been drafted by the Secretariat and provide in detail measures taken pursuant to resolutions of the 57th session. All note that Israel has failed to respond to communications concerning the resolutions. Most important is the report of the new Special Rapporteur on the situation in the Occupied Territories, John Dugard.  At the time of going to press, the Special Rapporteur’s report was not yet available, however in all likelihood it will echo the multitude of concerns raised by his predecessor and by other United Nations bodies.

The human rights problems in the Occupied Territories are monitored by numerous NGOs, the international media and the United Nations.  They are also regularly assessed by the United Nations Treaty Bodies. Their concluding observations and recommendations reveal the severity of violations in the region, and are worth recapping. A recurrent complaint of the treaty bodies is Israel’s denials of responsibilities for violations in the Occupied Territories, and its failure to encompass the Palestinian population in its periodic reports. The Human Rights Committee in 1998, for example, stated that Israel had to report on compliance with the ICCPR in those areas over which it exercises effective control. 

Violations of civil and political rights in the Occupied Territories are well known, and continue unabated despite international pressure and some domestic advances.

In 1999 the Supreme Court of Israel, in the case of Public Committee Against Torture in Israel v The State of Israel ruled that the use of “moderate physical pressure” in interrogation is a violation of the constitutional protection of the individual's right to dignity, and is therefore illegal.  While the decision was welcome, it did not provide an absolute prohibition on torture, nor has it ended the practice. For example, the Supreme Court would allow the use of sleep deprivation if it was “incidental” to an interrogation, while at the same time leaving open a possible “defence of necessity” for those ISA interrogators who might be criminally liable. In late 2001, the Committee Against Torture reported that despite the 1999 judgement, allegations of torture by the ISA have continued, very few of which have been investigated or prosecuted. 

Economic, social and cultural rights are similarly disregarded.  The people of the Occupied Territories are denied self-determination, not only through the occupation, but also in the denial of their own means of subsistence, as required by Article 1(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), also acceded to by Israel in 1991. The 1998 conclusions of the Committee on Economic, Social and Cultural Rights noted discrimination against Palestinians in respect of employment, education, land use and housing. The Committee deplored the practices of house demolitions, land confiscations and restrictions on residency rights suffered by Palestinians.

The treaty body complaints have been mirrored in the reports of previous Special Rapporteurs, most recently Giorgio Giacomelli’s. His last report emphasised the observance of the Fourth Geneva Convention by Israeli forces. With recent military developments, compliance with international humanitarian law, and arguably with the law of belligerent occupation, is paramount.

Each year the debate on human rights violations Israel and the Palestinian Occupied Territories is marred by the delicate politics of the region. The United States' dogged support of Israel has understandably led to allegations of double standards. Each year, the US fiercely pursues resolutions against States which have human rights records no worse that that of Israel in the Occupied Territories, while defending its ally to the hilt.

The commitment of the US to international law on this issue was starkly highlighted during the Tenth Emergency Special Session of the General Assembly on 20 December 2001. The United States opposed two resolutions on Israel. The first called for an end to the violence and the implementation of the Mitchell Report of the Sharm El-Sheikh Fact-Finding Committee. The second simply affirmed the application of the Fourth Geneva Convention to the Israeli occupation. In its opposition to the second resolution, the US was in the company of Israel, the Marshall Islands, the Federated States of Micronesia, Nauru and Tuvalu.  To deny the application of the very basic standards contained in the Geneva Conventions makes a mockery of any confessed commitment on the part of the US to the laws of wars.

In addition to undermining the credibility of the US, its opposition to the resolutions on the Occupied Territories arguably run contrary to many of the State Department's own findings. In its report of 4 March 2002, the State Department confirmed that “Israel's human rights record in the Occupied Territories was poor, continuing a deterioration that began in late 2000…” It reported that detention conditions for Palestinian detainees fail to meet international standards, that Palestinians are often held for lengthy periods without charge and that their freedom of movement is “severely restricted”. In the Occupied Territories, the State Department acknowledged that Israeli security forces committed “numerous, serious human rights abuses during the year”. The report notes that in 2001, Israeli security forces killed 501 Palestinians and one foreigner, and injured more than 6,300 people. At a time when the US claims to be seeking to revamp its image, particularly in the Middle East, its position on the Occupied Territories does nothing to support its bona fides.

The objections of the United States to the Commission’s handling of Israel are predictable. They argue that the situation should not be considered under a separate agenda item, that the Special Rapporteur's mandate should include violations committed by the Palestinian Authority and that the mandate should not be open-ended. It is true that the Palestinian Authority's human rights record in many ways is poor, however it is not exempt from consideration at the Commission on Human Rights. The treatment of Israel and the Occupied Territories is special because the case is unique. The situation that gives rise to human rights violations in the Occupied Territories is very much one of Israel's creation, and it is only Israel that can end the occupation and offer self-determination to the Palestinian people. The United States’ concerns with the technical aspects of the Commission’s handling of the Occupied Territories simply do not counter the extent of the violations.

The Israeli counter-argument - that they need a threshold guarantee of security - cannot be wished away. The new initiative from Saudi Arabia seeks to address this concern specifically. So does the Security Council resolution of 13 March 2002. It is in this context that a resolute addressing of human rights concerns by all concerned will provide the goodwill and democratic space for resolution of the wider political issues that have seemed so intractable.

The Palestinian Authority also needs to pick up its act in the defence of human rights. It has failed to institutionalise key safeguards against human rights violations such as arbitrary detention, torture and unfair trials. Palestinian security forces too often employ the tactics of their Israeli counterparts with respect to arbitrary arrest and ill-treatment. However, the increasing destruction of the Palestinian Authority's infrastructure by Israeli forces will do little to assist with consolidating mechanisms to protect human rights in the Occupied Territories.

There is no doubt that the Israeli occupation of Palestine is illegal in international law, but it is also a major obstacle to peace and the enjoyment of human rights. So too is the violence that has become a part of daily life in the region.  As the High Commissioner for Human Rights recently noted, a new political framework is needed to break the cycle of violence and guarantee rights for all. Without a meaningful political resolution, rights violations will continue to flourish in the Occupied Territories under the cover of occupation, armed conflict and the fight against terrorism.

While it is incumbent upon both the Israeli and Palestinian authorities to negotiate a lasting peace, the international community must commit itself to the process.  Not in defence of Muslims, or Jews, or for the sake of the delicate geo-politics of the Middle East, but because the violations occurring in the region are very real to the victims and are an affront to the principles upon which the United Nations was founded.

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No to slavery: Mauritania won’t speak of it

Government takes severe action against anyone who suggests that the despicable practice endures

IN his speech to the national assembly on 30 December 2001, Mauritanian Prime Minister Cheikh El Avia Ould Mohammed Khouna rejected the existence of slavery in the country. “Today, he said, "we live in a State which guarantees equality between citizens without discrimination on the basis of  race, ethnicity, sex or social position… the only form of slavery that exists is the one imposed by backwardness and illiteracy.”

The state of denial regarding the existence of slavery in this West African country extends to severe action against those who dare to suggest that the practice persists.

In January 2002, the government ordered the dissolution of the political party Action Pour le Changement (Action for Change, or AC). AC, an opposition party, had been campaigning for the rights of black communities and descendants of slaves in Mauritania. As political power has always been in the hands of Arabs and Berbers, the government considered AC “too radical”, racist and violent. It is not the first time that a political party has been proscribed by a government. In the past two years, two other parties have been banned - the Union of Democratic Forces in 2000 and Attalia in 1999.

The proscription of AC is clearly an undemocratic act vis-à-vis the black community. The party had offered a platform for political expression for this threatened community. The ban came in response to major gains made by the AC in the municipal elections the previous year.

The banning of the AC forecloses any hope of a solution to the issue of discrimination and slavery in the country, where according to the US State Department, in 1994, there were about 90,000 black slaves. Officially slavery has been banned not once but three times in Mauritania, and since 1980 it is illegal to ‘own human beings’.

In reality however, slavery still exists in the country where a third of the population is composed of dark-skinned Harratin - the descendants of slaves. In such case the blacks are considered as property of Arabs or Berbers, who 'use' them for labour, sex or ‘breeding’.

Even though there is no slave market as such, a Human Rights Watch report in 1994 highlighted that slaves are exchanged for trucks, camels or other valuables and they are often ‘punished’ for bad behaviour. Punishments included beatings, denial of food, and prolonged exposure to the sun with hands and feet tied together. Other forms of cruel and degrading treatment are also often used.

International human rights law comes out strongly against any form of slavery. The 1948 Universal Declaration of Human Rights states: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”. In 1956 the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery was adopted. The Convention emphasises the obligation of States to ensure that those responsible for slavery are punished.

Mauritania acceded to this Convention in 1986. However the law that abolished slavery in 1980 does not make any mention of criminal liability for slaveholders.

In fact, the 1980 abolition ordered compensation for slave owners, not slaves. The courts do not hear cases of slavery and torture, as slavery is officially non-existent in the country. Even though slavery is an everyday reality for some of the Mauritanians, it is politically incorrect to mention it. Local human rights activists engaged against slavery still have to act illegally, as they cannot get the required authorisation. In 1998, four human rights activists from an organisation called SOS-Esclaves were arrested after they were interviewed on a French channel.

SLAVERY is only one of the facets of racial discrimination in the country. Blacks usually face discrimination in all areas of their lives. The Committee for the Elimination of Racial Discrimination (CERD) in its 2001 report expressed its concern about the situation of the black communities suffering “from various forms of exclusion and discrimination, in particular with regard to the access to the public services and employment.”

Another consequence of such discrimination is the situation of black Mauritanians who were forced to leave their country and cross the border to find refuge in Senegal following the1989 racial clashes. Thousands of these refugees still live in unhealthy conditions in refugee camps in Senegal. The government stated that they could return if they wanted to, but that to re-enter their own country they would need to prove their citizenship. As in most such cases, their official documents were confiscated when they were forced to leave the country. This would effectively make them refugees in their own country if they returned to it. The government for its part has granted their lands to Arabs and Berbers. It was in fact part of the politics of confiscation aimed at ensuring a ‘light-skinned’ country. Now those refugees in Senegal have no right to claim back their properties that were stolen in 1989.

The government of President Maaouiya Ould Sid' Ahmed Taya, which took power following a military coup in 1984, continues its policy of impunity. Last year, Captain Ely Ould Dah, who was arrested by the French authorities on charges of torture, fled France to find refuge in Mauritania. The authorities have not responded to the international arrest warrant issued against this Mauritanian officer who was involved in racist acts of torture in the early 90s. Most of those responsible for ethnic cleansing face no legal action.

So far, no positive measures have been taken to ensure freedom of expression in the country. The government continues to apply its policy of gagging any newspaper opposed to its policy. In 2000, two newspapers were censored without any explanation. The 1991 law concerning press freedom authorises the censoring of any newspaper that criticises its policies. This makes it impossible for the media to report on contemporary forms of slavery in the country.

Foreign journalists are also not allowed to use the term ‘slave’, and face arrest or deportation if they raise the issue.

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Starting young: Child slaves in West and Central Africa

In April 2001, the story of the Etinero, the 'missing' boat with 180 children destined for sale as slaves in Gabon drew attention to a persistent problem in West and Central Africa. UNICEF and some non-governmental organisations reported that there were more than 200,000 children working as slaves in this part of Africa. The children work in cocoa fields in Côte d'Ivoire, in coffee or cotton plantations in Cameroon, as domestic servants for rich families in Gabon or as prostitutes. Children are bought in Benin or Togo for few dollars and sold at much higher prices at the final destination. An International Labour Organisation (ILO) report highlighted the condition of the children who have to work 10 to 20 hours a day, carry heavy loads, operate dangerous tools and are not given adequate food and drink.

Needless, to say, they are also not paid for their work. The ILO also noted that the phenomenon has reached alarming levels in some African countries like Cameroon where children involved in trafficking represent about 12.26 percent of the active population.

Even though some positive steps have been undertaken to fight child slavery, little progress is visible on the ground. Côte d'Ivoire, which is the first worldwide producer of cocoa is also one of the key 'importers' of child slaves, along with Gabon and Nigeria.

It must be pointed out that both 'supplier states' (victim's state of origin) and 'receiver states' (final destination) as well as transit countries are responsible for allowing this illegal trade to flourish. These include Benin, Burkina Faso, Cameroon, Côte d'Ivoire, Gabon, Ghana, Mali, Nigeria and Togo. These States usually fail to prosecute traffickers because there are no adequate laws to do so and also because trafficking increases incomes.

It is only since 1998, following a workshop organised in Benin, that African countries have officially acknowledged the existence of this illegal trade. A protocol was signed between Mali and Côte d'Ivoire in 2000 to take steps to change the outdated laws relating to slavery. In December 2001, members of the Economic Community of West African States (ECOWAS) adopted an anti-trafficking declaration and an action plan. Recently, cocoa producers signed an agreement to halt the use of trafficked children in their fields.

Finally, in January 2002, representatives of West and Central Africa, UN regional agencies and NGOs met in a three-day conference on child exploitation and trafficking with a view to increasing cooperation between the countries. However no concrete legal evaluation was undertaken. The next meeting will be held only in 2004.

At the international level, 140 countries have signed the UN Convention against Transnational Organized Crime but only six have ratified it. And only 101 States have signed the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. Both, the Convention and the Protocol need 40 ratifications to enter into force.

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Hunger for reform drives fast-unto-death

A number of Turkish detainees are on death fasts to protest prison conditions as well as torture and ill-treatment in custody, but the authorities are unmoved, saying the fasts are ‘meaningless’

MARCH 21 - three days from now - will mark one year to the day Cengiz Soydas died. The first casualty of the 'death fasts' that began on November 2000, the demise of 28-year-old Soydas was to be followed by at least 40 more deaths - part of a desperate effort to draw international attention to Turkey's record of imprisoning political dissidents and to its 'prison crisis,' vested in the continuation of an abysmal record of torture and ill-treatment in custody.

The drastic campaign - now on for 15 months - is also meant to force the Turkish government to change its stance on conditions of imprisonment, specifically its policy of substituting traditional dormitory-style prisons with so-called F-type detention centres which house prisoners in cells for one to three persons.

The government's attempt to address the ‘prison crisis’ aims to cater both to the international public - especially to European Union demands ahead of Turkey's long anticipated accession - and to domestic political imperatives, characterised by suppression of ethnic minorities and religious organisations. In mid-2000, one out of seven prisoners was convicted for being a member of a political organisation - Kurdish, socialist, communist, or Islamic. Despite the rhetoric, the effective implementation of human rights standards has so far not taken centre stage.

Meanwhile, the protest, passive, yet striking in its inertness, continues gaining supporters - family members, students, and others. The government remains unmoved. The death fasts are tragic, government officials have said, “but meaningless.”

Array of abuses

            The widespread use of torture in Turkish prisons, predominantly against political prisoners but also against ordinary criminal convicts, and the prevalence of impunity due to intimidation of victims and fear of reprisals had been widely documented even before Turkey's bid for accession to the European Union in 1987. According to reports, 460 prisoners died from torture, armed operations, lack of medical care or death fasts between 1980 and 1995. A report by Amnesty International (November 2001) found that “[v]ictims of torture include women and children and are not restricted to those suspected of crimes under anti-terrorism legislation but also include many people suspected of common crimes” while in some cases being “linked to discrimination on the basis of sex, sexual orientation or ethnicity.”

The following factors were found to be conducive to the persistence of torture in police and judicial detention: sound-proof interrogation rooms, the use of techniques unlikely to leave marks on the victim’s body, incommunicado detention and lack of access to lawyers, family, friend and doctors, disregard for registration of prisoners guidelines (leading to ‘disappearances’), the admission of confessions as evidence in criminal investigations, pervasive impunity of perpetrators, and the intimidation of health officials.

Several prison riots took place between 1996 and 2001. The government appeared to give in to prisoners’ demands regarding prison conditions voiced during hunger strikes and death fasts but then failed to honour its commitments. A hunger strike by 1,500 persons and a parallel death fast by 300 persons lasting 69 days ended in July 1996, leaving 12 leftist prisoners dead. Lawyers, family members and journalists were barred entry to prisons. Criticism within as well as outside the country mounted. 

In December 1998, for instance, the Turkish Human Rights Association (IHD) and other organisations protested that “instances of maltreatment behind the walls of prisons have marked the agenda of Turkey for many years” and claimed that even basic needs for shelter, heating, nutrition and cleanliness remained unfulfilled in many cases, in denial of prisoners' right to humane living conditions.

IHD further asserted that, in 1998, 399 prisoners had been injured or had become handicapped due to mistreatment and 63 detainees had died subsequent to attacks by security, while none of the perpetrators had officially been charged. Turkey's December 2000 release of thousands of prisoners appeared to be a knee-jerk response to mounting criticism on the part of the EU of Turkey's imprisonment practices and conditions. None of those incarcerated for acts constituting the peaceful expression of opinion or the exercise of freedom of association and public assembly were released, yet security forces convicted for ‘ill-treatment’ - never called torture - of detainees were freed.

WHILE dissidents, human rights activists and journalists continue to be tried and imprisoned under the Turkish Penal Code and the Anti-Terror Law of 1999, the Turkish government embarked upon a programme of addressing prison conditions. The conditions spelled out in the EU's Accession Partnership Agreement for Turkey in March 2001 had included the outlawing of torture in prisons, the provision of constitutional guarantees for free speech and protection of the cultural rights of minorities.

In its Five Year Plan of 2000 (the ‘Demirok Report’), the Turkish government pledged to expand freedom of thought and expression, put a stop to torture, improve conditions in jails, and train law-enforcement personnel to respect human rights. The envisioned preventative measures aimed at eradicating torture were to be implemented only between 2002 and 2003, a time frame severely criticised by human rights defenders. A narrow legal definition of rape failed to outlaw various forms of sexual abuse to which female prisoners are likely to be subjected. Medical or psychiatric reports continued to be inadmissible during the investigation of torture allegations. The prosecution of civil servants remained unlikely since investigations against security officers could proceed only with a superior officer's consent, which is often denied. 

The building of F-type prisons, however, drew the most vocal domestic protest.

Despite strong political opposition, the F-type prisons were built. Justice Minister Hikmet Sami Turk promised that an amendment to Article 16 of the Anti-Terror Law, under which prisoners can be kept in isolation, would precede the planned transfer to F- type prisons.

Before this amendment was undertaken, however, a 61-day fast by over 200 prisoners in protest of their anticipated transfer to smaller cells was violently broken up when paramilitary groups raided 20 prisons, purportedly to step in and take charge after scores of prisoners went on a hunger strike. The hunger strikers were demanding the abolition of F-type prisons or their redesign under the supervision of medical experts and architects, the prosecution of the perpetrators of previous prison massacres, and medical care for ailing prisoners who had survived previous armed operations and death fasts.

‘Return to life’

The official rationale of the anti-strike operation was the “rescue” of members of illegal, radical left organisations from starvation, allegedly enforced by their leaders. The operation - ‘Return to Life’ - proceeded despite a Ministry of Justice pledge a few days earlier to postpone the prison transfer. The Minister of Interior Affairs was forced to admit subsequently that the operation had been planned a year in advance An estimated 31 prisoners and two guards were reported to have died, eight disappeared, and 426 were wounded in the ensuing violent clashes in which security personnel employed firebombs and left death-fasting prisoners to die in their cells.

The government claimed that many of the dead prisoners had set themselves on fire. The Human Rights Foundation of Turkey reported that bodies had been buried without identification and victims’ families were not allowed to conduct autopsies. Many of the fast’s supporters, among them human rights defenders, politicians, trade unionists and representatives of non-violent organisations, were arrested before and after the operation.

While calls for reform of the penal system were issued both nationally and internationally, the offices of the Turkish Human Rights Association, a vocal critic of the persisting situation, were raided by security police, and the organisation was accused of receiving funds from the Greek Foreign Ministry. Official statements implied that protest against the new prison system would be interpreted as a criminal offence. In the meantime, the government appeared bent on “forcibly treating” hunger strikers against their consent. 

Before, during and after the transfer of some 1,000 left-wing prison inmates to F-type prisons instances of torture allegedly abounded.  Detainees’ reports of having been stripped and raped with a truncheon on arrival at Kandira F-type prison near Izmit were countered by official denial as were other allegations of mistreatment. Prisoners’ relatives of left-wing detainees reported that beatings, abuse and denial of medical attention were rife inside the new maximum security jails. Human rights organisations reportedly received dozens of formal complaints. As after previous prison takeovers, no legal action was taken against security forces alleged to have been responsible for the excessive use of force.

The hunger strike, nevertheless, continued. By January 2001, 300 prisoners were reported to be on hunger strike, some of them for more than 70 days. By mid-April 2001, 13 had died.

‘Exceptional arrangements’                      

In April 2001, Amnesty International and the Committee for the Prevention of Torture of the Council of Europe (CPT) pleaded with the Turkish government to put a stop to the practice of isolated imprisonment. Amnesty alleged that of those prisoners transferred to F-type prisons in December 2000, none had been allowed out of their cells for recreation or proper exercise. Both organisations argued that “prolonged isolation can in itself amount to cruel, inhuman or degrading treatment and can facilitate torture and ill-treatment”.

By way of response, two government bills, envisioning the appointment of a judge to hear prisoners’ or relatives’ complaints on prison practices and the setting-up of local jail monitoring boards, were meant to “establish transparency in prisons.” An amendment to Article 16 of the Anti-Terror Law - promised before the December 2000 transfer of prisoners to F-type prisons - allowing terrorism convicts to associate with other-category prisoners on condition of their taking part in certain prison-run recreation programmes - was criticised for failing to bring about an improvement in prison conditions. Amnesty, for instance, noted that its implementation inside detention centres was at the discretion of the authorities in specific prisons.

Lobbying for communal activities in prisons, CPT argued that isolated imprisonment was only justifiable with regard to “exceptional arrangements for specific prisoners”.

By June 2001, eleven F-type prisons were reported to be in use or about to be used. In the face of continued protest, Justice Minister Turk announced that Turkey had no intention to build any more F-type prisons. While 42 protesters at rallying against the new jails were arrested in Istanbul, the Turkish Human Rights Association called for Turk to be tried for his role in the prison deaths since the hunger strike’s commencement in October 2000. In December 2001, 13 people connected with the hunger strike were arrested in the course of a police raid on their house and later given a 22-and-a-half year sentence, while two supporters were charged with membership of an illegal organisation. While Turk maintains that F-type detention centres have been constructed according to standards set by the UN and the Council of Europe, prisoners continue to prefer the security net provided to them by overcrowded dormitory prisons housing more than 60 persons, to privacy, hygiene and European-style prison orderliness.

From the prisoners’ point of view, attempts at prison reform in Turkey so far have merely meant the grafting of “a European model of accommodation onto a system that is corrupt, violent and abusive”.

Only if prison reform in Turkey is accompanied by measures towards towards guaranteeing humane prison conditions and ending the criminalisation of political dissent and the persecution of human rights defenders, will human rights in Turkey start to be accorded the respect they demand. The death fasters may then be persuaded to call off their lethal campaign.

Prison Standards: Abuse behind closed doors

OSTENSIBLY conceived by the government as a step towards conforming to the European model of imprisonment and prison conditions regarding hygiene and privacy and as a precautionary measure against hostage-taking and rioting in prisons, small cell prisons, modelled after the US prison system, were called for also because they facilitated the break-up of "the power that Islamic, Kurdish and mafia leaders wield over prisoners in crowded dormitories" within strong and morally supportive social networks.

Far from making the incidence of torture and ill-treatment in prisons less likely, however, prisoners argue that the relative privacy of individual or 'isolation cells' would expose them to increased abuse and mistreatment by prison authorities under conditions of virtual impunity.

Furthermore, prisoners would be prone to go without human contact for long stretches of time. The Turkish Medical Association (TTB), the Union of Turkish Bars (TBB) and the Association of Engineers and Architects (TMMOB) found that F-type prisons were conceptualised so as to "break prisoners psychologically through isolation".

The targeted isolation of prisoners itself was found to violate the United Nations Standard Minimum Rules for the Treatment of Prisoners as was accommodation in cells without natural light with prisoners not allowed to take daily exercise in the open air.

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SWEARING BY REFORM

It’s time to put Pakistan’s blasphemy laws on trial

THE decision to abolish separate electorates for minorities in Pakistan, announced by the National Reconstruction Bureau on 16 January 2002, was a welcome shift in Pakistan's policy on minorities.

The system, which had been reintroduced under General Zia-ul-Haq’s reign in 1985, made religion a determining factor for the right to vote or to be elected. Pakistani citizens were not allowed to vote outside their own religion and religious communities were allocated a certain number of reserved seats in the National and Provincial Assemblies. This effectively led to “religious apartheid” because it excluded minority communities from the political mainstream.

The separate electorate system was also a source of conflict -- the number of reserved seats being too low to allow the representation of the different communities. Apart from being de jure discrimination, this system also resulted in selective representation: the representation of one group necessarily produced the non-representation of another.

The separate electorate system also considerably undercut the ability to elect candidates with awareness of or sensitivity to the needs of distinct areas. Minority groups did not vote for candidates in their local district but for a list of minority candidates. Consequently, candidates represented the entire community across the whole country rather than regional groups with specific geographic or local needs.

The system clearly contravened major international human rights instruments as well as the Constitution of Pakistan. In his 1995 report, the Special Rapporteur on the Elimination of All Forms of Religious Intolerance condemned this electorate system and recommended a “single electorate system, involving all citizens without distinction, especially based on religion”.

The restoration of the joint electorate system on 16 January 2002 allowing non-Muslim minorities to vote along with the Islamic community is therefore a welcome step, one that will go a long way towards achieving an egalitarian and democratic society.

This move forward should bring useful attention to other discriminatory features of Pakistan's policy on minorities. In this light, a major tool of discrimination against religious minorities are blasphemy laws.

Blasphemy laws in Pakistan - some of the harshest in the world - have often been used to discriminate against, isolate or otherwise harm minority groups. Amended in 1996 with the insertion of section 295C in the Penal Code, The definition of blasphemy is now applied as follows:

“Use of derogatory remarks, etc; in respect of the Holy Prophet. Whoever by words, either spoken or written or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Mohammed (PBUH) shall be punished with death, or imprisonment for life, and shall also be liable to fine”.

On 7 July 1991, President Zia-ul-Haq promulgated Ordinance XXI amending section 295A of the Penal Code and the Code of Penal Procedure. The maximum prison sentence for outraging the religious feelings of any group was increased from two to 10 years.

The year 1992 marked the lowest point in the development of the blasphemy laws in Pakistan. Through a bill adopted by the Senate, the death penalty was made mandatory upon conviction on charges of blasphemy.

The definition of blasphemy under section 295C is relatively open-ended, and the arrest of a person reported to have committed blasphemy requires no warrant. No preliminary investigation is required before the filing of the First Information Report (FIR) by a local police officer. Once “the testimony of a reliable man” has been registered, the FIR is filed and the person arrested.

Following considerable pressure from Catholic and human rights groups, President Musharraf announced, on 21 April 2000 at the Convention on Human Rights and Human Dignity in Islamabad, that he would amend the blasphemy laws in order to end its abuses and to promote equality. The proposed reform would have amended the procedures related to the filing of the FIR and specifically provided for preliminary investigation and scrutiny by the Deputy Commissioner prior to filing an FIR. This would have guaranteed a non-trivial protection against arbitrary arrest and greater independence from local authorities who are often subject to local, religious and political pressures. 

However, on 16 May 2000, following pressure from Islamic fundamentalists and threats of a three-day nationwide strike, Musharraf backtracked on his assurance and declared at a press conference:

“As it was the unanimous demand of the ulema [Islamic clerics] and the people, therefore, I have decided to do away with the procedural change in registration of FIR under the blasphemy law”.

Some sections supported Musharraf's about-face purportedly on the ground that the automatic detention of people accused of blasphemy was an effective way of protecting the accused from “popular justice” which would exact a worse “punishment”. However, if those accused of blasphemy face threats to their lives after being released, the solution should surely be better protection from the State and not the application of measures that further curtail individual rights. Furthermore, the absence of an impartial inquest system opens the door to the use of blasphemy laws to settle personal quarrels, business disputes, land rights issues or the like. These laws also serve as easy and destructive tools in the hands of religious extremists. 

AN especially appalling aspect of the blasphemy laws is that they cover not only intentional but also unintentional blasphemy. This element subverts the principle that a criminal act requires a criminal intention. It also indicates the exceptional scope of these laws and the ease with which they can be used arbitrarily.

While Muslims are also covered by the law,  a disproportionate number of Hindus and Christians, who make up three percent of Pakistan’s population, find themselves in the dock for alleged blasphemy. In 2000, the National Commission for Justice and Peace recorded 16 blasphemy cases against Christians and Hindus and 36 against Muslims. Although no death sentences have been carried out - most being overturned by the courts - dozens of people spend years in jail waiting for appeals to come through.

Details of offences are also rarely, if ever, made public, since under Pakistani law, the reiteration of the words that constitute the offence can, in itself, be a legal offence.

Another group facing highly discriminatory laws is the Ahmadi community. The Ahmadis consider themselves Muslims but differ from Pakistan's majority Sunni Muslims on the finality of the word of Prophet Mohammed. Nevertheless, in 1974, a constitutional amendment declared the Ahmadis a non-Muslim minority. Under the separate electorate system, therefore, the community was effectively excluded from the political process.

Since 1984, the legal apparatus in Pakistan has actively tried to criminalise the Ahmadis' faith. Ahmadis suffer from numerous restrictions on religious freedom and widespread societal discrimination, including violation of their places of worship, banning of burial in Muslim graveyards, denial of freedom of faith, speech, and assembly, and restrictions on their press.

In 1993, the Supreme Court ruled against the Ahmadis in a case on the constitutionality of Section 298(c), which forbids Ahmadis from professing to be Muslims and from using Muslim practices in their worship or in the propagation of their faith. The Court held that Islamic phrases are in essence a copyright of the Islamic religion. The use of Islamic phrases by Ahmadis was deemed equivalent to copyright infringement, an offence under the Trademark Act of 1940. The judgement also reiterated that the use of certain Islamic phrases by Ahmadis was equivalent to blasphemy.

The status of the Ahmadi community has remained unchanged. No government has made a serious attempt to discard or even change these discriminatory laws.

In one case, reported by Amnesty International, four Ahmadis - Riaz Ahmed, Basharat Ahmed, Qamar Ahmad and Mushtaq Ahmad - accused of blasphemy spent more than four years in Mianwali jail before their bail applications were heard and granted.

In another case, Ayub Masih was arrested on 14 October 1996 and was sentenced to death two years later. His appeal was pending for two-and-a-half years in the High Court without any hearing. On 24 July 2001, the Multan bench of the Lahore High Court confirmed the death sentence. An appeal against the sentence has been filed in the Pakistan Supreme Court. Ayub’s is also the first case in which the death sentence has been confirmed at the level of a High Court bench.

In view of the progressive mood of the times, President Musharraf would do well to take his reformist agenda further. Laws that restrict freedom of expression - and worse, provide for the death penalty in case of an inadvertent expression of irreverence - are incongruous in a nation on a democratic path.

If the Pakistani government is not ready for a fundamental change in the laws, it can begin by ensuring that the legal procedure on blasphemy respects the minimum guarantees of a fair trial.

Finally, although the death penalty has not been applied so far in a blasphemy case, it must be done away with as a matter of priority. Such practices violate the spirit of the Pakistani Constitution as well as fundamental rights guarantees enshrined in international human rights instruments.

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India riots make a case for police face-lift

“WHERE the whole society has opted for a certain colour in [sic] a particular issue,” admitted Ahmedabad Police Commissioner Prashant Chandra Pande to an interviewer recently, “it’s very difficult to expect the policemen to be totally isolated and unaffected.”

Mr Pande was defending the largely sectarian response of his police force, which has been charged with the task of putting down revenge killings by Hindus in the state of Gujarat. The killings began after a Muslim mob torched a train carrying Hindu activists returning from Ayodhya - the northern Indian town where the Vishwa Hindu Parishad (VHP), a Hindu right-wing group, has laid claim to a piece of land on which a mosque previously stood. The VHP and its affiliated groups destroyed the mosque in 1992 in an attempt to construct a temple at the site.

This reasoning offered by an official of the rank of Police Commissioner indicates the extent to which sectarian prejudices have seeped into the police system. The bias shown by the police was ignored, and at times even endorsed, by a chauvinistic state government that took its time deploying the police, the Army and paramilitary forces, and which refused to entertain charges of inaction.

Members of the state administration, notably Gujarat Chief Minister Narendra Modi, sought to justify the raging violence with remarkable statements such as, in view of the Muslim attack on Hindus on the train entering Gujarat, the reaction of the Hindus was “understandable”. The police force had not demonstrated bias, he claimed, adding that the state had not inhibited the police and Army from stepping in to control the violence.

All in all, he concluded, the government had not erred, the rioting had been brought “under control”, and the state administration should be commended for having halted the spread of violence “within three days”.

That more than 500 people have died in the rioting so far does not seem to have induced any sense of accountability. As an elected representative, it was the duty of the chief minister to own moral reponsibility - not simply for the revenge attacks but much earlier - in the first instance when the train was set on fire at Godhra railway station. By all accounts, the mob had clearly been waiting for the train and was armed. The obviously volatile situation warranted a prompt dispatch of police personnel and preparations for follow-up action. No preventive action was taken.

The state administration was also either inexcusably unprepared for or, more likely, wilfully blind to the inevitability of retribution. As people went on a rampage, setting fire to Muslim homes and business establishments, obstructing fire engines, and refusing to offer shelter to Muslim neighbours, the police in numerous instances either took no action, or reached the spot only after the damage had been done. The Army and paramilitary forces meanwhile stood by, waiting for deployment orders that came too late. In some cases, police officials claimed they had received instructions from state government officials not to intervene.

The handling of the riots in Gujarat bears a disturbing resemblance to police and State behaviour in previous communal riots. On 31 October 1984, armed mobs fell upon Delhi's Sikh community following Prime Minister Indira Gandhi's assassination by her Sikh bodyguards. The attacks began on the day of the assassination. However, the Army was called out only the next evening.

In its reply to an inquiry commission, the Army claimed that the government took too long to issue deployment orders. The Army affidavit also stated that it was deployed in the less affected southern and central districts of Delhi. The government, for its part, placed the onus on the Army. A (now-infamous) statement made by the slain prime minister's son encapsulated the pervasive attitude within the government. “When a banyan tree falls,” Rajiv Gandhi stated, “the earth is bound to tremble”.

THE State’s abdication of its responsibility to protect minorities is demonstrated most clearly by the behaviour of its police. The sectarian bias of the Indian police as well as its politicisation is not a new phenomenon. The police force is regarded as the handmaiden of the political establishment, to be used to advance and protect the interests of the party in power.

Its sectarian approach also has a long history. As Vibhuti Narain Rai, former Inspector General (Border Security Force), now with the Uttar Pradesh state Police, noted in a 1999 article, communal overtones coloured police perceptions of citizens as well as the community's perception of the police as far as back as the pre-Partition days. A police officer, Hindu or Muslim, adds Rai, “continued to be looked upon primarily as a protector of his own community.”

Rai undertook a study on police neutrality during communal riots, in which he found that the relationship between the police and Muslim citizens in most parts of the country was “inimical” and that “community perception of the police in situations of communal tension was that of an enemy”.

In most major communal riots in the country, according to Rai's findings, Muslims suffered the most, “both in terms of life and property”.

Additionally, he found that “even in riots where the number of Muslims killed was many times more than the Hindus, it was they who were mainly arrested, most searches were conducted in their houses, and curfew imposed in a harsher manner in their localities. This observation holds good for even those riots where almost [all those] killed were Muslims.” (emphasis in original).

Now, thanks to stubborn resistance to reform, the nation's consciousness has been marred by images of helpless citizens under siege of their fellow countrymen and imploring the police to come to their aid.

More than half a century after Independence, the Police Act of 1861 - dating back to British colonial rule - still regulates the operation of the Indian police force.  The current public perception of the Indian Police Service is in large part due to the structure of the 1861 Act. Attempts were made by some NGOs to expedite the process of police reforms in India.  These efforts, however, met with little cooperation from the government or the police force.

Policing in India consequently remains plagued by political interference, a lack of basic training, the virtual absence of accountability and a poor public image. Brutality has become endemic in police work. The general public believes that the police is more likely to harass them than help them. Police assistance is therefore rarely sought. The police force, on the other hand, must contend with low pay, poor working and living conditions and high levels of stress.

On 15 November 1977, the Government of India's Ministry of Home Affairs appointed a National Police Commission (NPC) to examine all aspects of the Indian Police Service and to “re-define the role, duties, powers and responsibilities of the police”. In a series of eight reports brought out between 1979 and 1981, the NPC made numerous far-reaching and promising recommendations concerning the functions, procedures and perceptions of the police force in India and the Indian system of justice in general. The eighth and concluding report proposed a new Police Act to replace the Police Act of 1861. However, nearly 20 years after the publication of the NPC's concluding report, the state of the Indian police remains as before. India's state and union governments show no signs of implementing the recommendations.

ONE of the most notable efforts to promote police reform was made by former Uttar Pradesh police chief Prakash Singh. In the case of Prakash Singh vs Union of India (writ petition 310 of 1996), Singh called on the government to implement the recommendations of the NPC and the National Human Rights Commission. Four specific issues were raised in the petition: (1) creation of a State Security Commission; (2) adoption of a fixed tenure for the police chief; (3) separation of the law and order and investigative branches of the police force; and (4) introduction of a new Police Bill. 

     In the Prakash Singh case, the Supreme Court ordered the Government of India to establish a sub-committee to examine the main themes of NPC's recommendations. The terms of the sub-committee, which was headed by former Mumbai Police Commissioner Julio Ribeiro, were detailed in MHA Memo No. 11018/1/98-PMA dated 25 May 1998. A few NGOs worked with the committee to review and perfect the NPC recommendations. Four years after the formation of the Ribeiro Committee, however, no tangible results are in sight. The Supreme Court, having completed its hearings on the petition over a year-and-a-half ago, has reserved its judgement.

Hard questions need to be asked in the wake of the Gujarat tragedy: about the character - and future - of a democracy that permits the blatant and consistent disregard of the rule of law by its own law enforcement agencies. Serious consideration must be given to the NPC reports - this is a seemingly obvious point of departure, but one that has surprisingly found no mention either in government circles or in the media. It would constitute the first step toward the reconceptualisation of the Indian police as a protective force that can be relied on and expected to provide safety to persons under threat, regardless of their religious status or political preferences.

To have a citizen plead with the police to come and save his life is a disgrace to the democratic culture that Indians lay claim to.

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Who said Australians love to be hated?

It’s our politicians who are betraying our decency and turning us into a nation of thugs, says Chris Sidoti

This paper was written for a seminar on Refugees, Gangs and Racial Punishment held at the Sydney University on 27 September 2001.

EARLIER this year the great story of Australian federation was enjoying its fifteen minutes of fame. Many very silly things were said and done - or rather many very serious things were not said or done. We heard speeches and read articles and held celebrations in honour of the great achievement. There was much discussion of the driving influences for federation, most especially the great national project. We were reminded, if we had known previously, or told for the first time, if we did not, about Edmund Barton's quotable quote, “A nation for a continent and a continent for a nation”.

There was virtually no mention of the fact that one of the driving influences was racism, the perceived wish to unite the continent to keep it white. The omission of any mention of this issue was entirely predictable, of course. It would have spoiled the triumphalism. And besides racism in Australia has always been something practised, not something discussed.

The sad truth is that racism was at the heart of federation.

The federal constitution excluded Aboriginal people from the national census and denied the federal parliament the power to legislate for their well-being. The enactment of the White Australia Policy was the first policy law passed by the new federal parliament.

Looking back on more than two centuries of Australian history since British colonisation I see two pre-occupations, even obsessions: racism and punishment, especially locking people up. Indeed they were there from the first day, when Arthur Phillip planted the British flag at Sydney Cove. Australia was colonised for the purpose of locking people up. And that colonisation required the dispossession, deprivation and deaths of the original inhabitants of the continent.

These two national obsessions remain evident in today's Australia. We continue to lock people up at rates far greater than almost any country in the world except the United States. Those locked up are disproportionately indigenous people. We are also unique among democratic countries in imposing mandatory detention on asylum seekers who arrive without an entry visa and almost all of them are from Asia and Africa. Our two obsessions crystallise and are integrated in the treatment of non-Anglo Australian offenders and of boat people.

crime and punishment

As I have indicated the effect of racism in the criminal justice system is seen most clearly in the imprisonment rates of indigenous Australians. In spite of the reports and recommendations of important national inquiries including the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into the Removal of Indigenous Children, indigenous people continue to be imprisoned at rates that for young people exceed 20 those of other Australians and for adults are still many times the rates for other Australians. Mandatory sentencing laws in Western Australia and, before the recent change of government, the Northern Territory targeted Aboriginal children and young people most of all, exacerbating their disproportionate imprisonment rates. Media and public outrage is especially harsh in dealing with young offenders and young offenders of indigenous or Middle Eastern or Asian background are most harshly treated of all.

We have seen that many times in the public discussion of youth gangs in western Sydney over the last ten years. These gangs are usually described in ethnic terms: Vietnamese or Chinese drug gangs, Lebanese rape gangs.

In each instance the ethnicity of the gang members is of little or no relevance whatsoever. Some years ago there were fights in the Bankstown and Marrickville areas between gangs described as Vietnamese and Lebanese gangs. There was public and political uproar that resulted in an intensive investigation of the situation by a number of organisations. The conclusion then was that ethnicity was virtually irrelevant to the gang development and behaviour, that the pattern was classic adolescent male gang behaviour rather than being ethnically or racially motivated. I am convinced that the same is true today of the much-publicised Lebanese rape gangs. The gang rape of young women is a crime of the utmost seriousness but it is not necessarily racially or ethnically related. The recently widely reported gang sexual assaults are serious juvenile crimes and should be dealt with as such, not as racial warfare.

Gangs have always been part of life in Bankstown. I should know. Piers Ackerman, Alan Jones, John Laws, Bob Carr and Peter Ryan might live in trendy yuppie suburbs in inner, eastern or northern Sydney but I have lived in Bankstown for almost all of the last 43 years. I remember when we moved there in 1959 from the eastern suburbs, how members of our extended family were concerned for our welfare out in the wild west because of the gangs. And there were gangs in Bankstown then. There were bikies of various varieties and of course the bodgies. There were particular milk bars that, as a seven year old, I was told not to go into or even walk past.

A couple of years ago, soon after the furore about Vietnamese and Lebanese gangs, I was talking about this to Bryan Brown, who also grew up in the Bankstown area, in Panania where I now live. He told me of the gang fights he experienced as a boy, including one memorable rumble when he was chased by a knife-wielding opponent. Those who say things have never been this bad have very short memories. That by no means justifies crime today but it puts it in a more accurate context and enables a more effective response.

Gangs are problematic. They have always been problematic. They commit crimes, sometimes the gravest crimes involving sexual assault and other forms of violence. But their activities need to be attacked as criminal, not as racial or ethnic.

A response based on some racialised analysis misses the point and will prove ineffective in combating crime, which should be the principal concern of politicians, police and media shock jocks.

While saying this, i am not for a moment suggesting that there are no race-based crimes in australia.

There are. In fact over the past couple of weeks I have received many reports from members of my family and friends of Moslem and Arabic people, especially women, being abused, assaulted and in one case pushed over and hospitalised. These crimes are based on race. There was also the torching of a mosque in Brisbane in suspicious circumstances last Friday night. Similar crimes committed during the Gulf War led to an inquiry into racist violence by the Human Rights Commission. Its report recommended, among other things, that federal parliament should introduce a new federal offence of racist violence, applicable to acts of violence and intimidation with a racist intent.

That recommendation was rejected by the government of the time and has not been accepted since. It should be. Events of recent weeks demonstrate again the need to address not only violence itself but racially-motivated violence. A new offence would attach higher penalties to this kind of violence. And it would also apply to gangs where there is evidence that their criminal activities are racially based.

Boat People & The First Fleet

Although this seminar is examining a number of issues concerning racism in Australia, I am compelled to devote most of my comments to the situation of asylum seekers. The events of the last month concerning boat people seeking to enter Australia have been for me among the most distressing for many years. For the first time in my life I have been deeply ashamed to be an Australian.

These events must be understood in their historical context - both the context of our twin obsessions with racism and locking people up and the context of who we ourselves are and where we come from. Almost all Australians are either boat people or the descendants of boat people, those who came here seeking better lives for themselves and their children.

The first boat people, whom we call the First Fleet, and those who followed them in the first half of the nineteenth century took this country by force from its original peoples. In the second half of the nineteenth century others came seeking treasure during the gold rushes. Then fear set in among those who had come here as boat people. They feared immigration from Asia and so decided to federate their six colonies into one commonwealth in part to prevent that fearsome eventuality by creating an immigration policy for a continent, the White Australia Policy. The fact that this year is the centenary of the White Australia Policy has been conveniently overlooked in all the triumphal celebration of the centenary of federation. December 17 next marks the centenary of White Australia - no longer a Policy but in many ways still the practice.

During the twentieth century a succession of courageous political leaders from both sides of politics led Australia into the wider world. They gradually opened the doors to more people who wanted to make their homes here and gradually abandoned the racial basis of Australia's immigration policy. They did not wait for public opinion to lead them but led public opinion, convincing Australians that their policies were not only right for Australia but just. Prime Minister Chifley and Immigration Minister Calwell welcomed those from eastern and southern Europe who fled the consequences of holocaust and war, even though many of those who lived here at the time called the newcomers wogs and dagos and refos. Prime Minister Menzies continued and extended their policies. Prime Ministers Gorton and Whitlam challenged and then discarded formally the White Australia Policy. Prime Minister Fraser responded compassionately to the flood of boats after the end of the Indo-China war, even when some racists sought to inflame public opinion against them by spreading false information about boat people being billeted compulsorily with suburban families.

Since 1989, however, the successors of these great men have led the nation down a slippery slope to cold hearted, calculated rejection.

Yes, Prime Minister Hawke showed great humanity when he responded to the Tiananmen massacre by accepting tens of thousands of Chinese students and their families. And yes, no Prime Minister has shown more commitment to engagement with our region than Prime Minister Keating. But their administrations began tightening the laws governing unauthorised arrivals, that is, those who come to Australia without documentation seeking to enter and obtain asylum. They introduced mandatory detention of all unauthorised arrivals. They removed entitlement to damages for illegal detention. They restricted access to administrative review of refugee decisions. They built detention centres, little better than work camps, for the long-term imprisonment of asylum seekers in the most remote parts of Australia.

Under Prime Minister Howard these practices have been refined and taken to new heights of inhumanity and absurdity, with the support of his accomplice, Opposition Leader Beazley. Together they have turned their backs on the highest qualities of leadership, vision and humanity shown by their predecessors. Mr Howard has betrayed the legacy of Menzies, Gorton and Fraser and Mr Beazley the legacy of Chifley and Calwell, Whitlam, Hawke and Keating. Mr Howard may refuse to apologise to indigenous people for the sins of the past because he says he was not responsible but there is no way he can escape responsibility now and the judgement of history for what he himself is doing today. Mr Beazley may cry over the tragic stories of the stolen generations but in his attitudes towards asylum seekers he perpetuates the evil that motivated the past policies of removing children.

The response to the boat people is unjustifiable on the grounds of logic even if appeals to humanity fall on deaf ears. It is totally out of proportion to the extent of the problem. Unlike many countries in our region - poor, developing countries like Pakistan, Thailand, the Philippines and Indonesia - and unlike other developed countries, those in Western Europe and North America, Australia receives only a handful of asylum seekers each year. We are an island nation a great distance from those parts of the world that generate refugee flows. For the ten years after 1989 the average number of arrivals a year was around 600. The average has increased significantly in the past two years. Now around 4000 arrive each year. A significant increase but still not a significant problem. Nonetheless the Howard Government persists in spending inordinately large sums of taxpayers' money to keep these people locked up for periods that very often run into years. Many hundreds of those who have been locked up, for periods up to five and a half years, have been children.

I am not going to go through all the statistics and all the arguments about these policies. They are already on the public record, in numerous reports of the Human Rights Commission and of parliamentary committees, in addresses, articles and publications of the UN High Commissioner for Refugees, in statements by human rights organisations and in many other forums, for anyone who is truly interested to read and consider the issues involved. Unfortunately this is not an argument about facts or ethics or even logic but a matter of prejudice. So let me address the prejudice.

The events of the last month have certainly been extreme even by Australia's standards.

We have seen men, women and children detained on a foreign flagged merchant ship, first in international waters and then in Australian territorial waters. We have seen this foreign vessel stormed by military commandos who seized control of it. We have seen people transferred against their will onto a naval vessel and then taken on a very long sea voyage. We have seen a very poor, virtually bankrupt country bribed to accept them and feed and keep them on a temporary basis. We have seen what amounts to arbitrary detention, kidnapping and people trafficking. People trafficking is ironic: the excuse given for these human rights violations is the need to stop people-smuggling but here we are engaging in it ourselves. The Prime Minister and his immigration minister accuse these people of queue-jumping. Perhaps they would like to go to Kabul and Baghdad themselves and point out the orderly migration queues. They call the asylum seekers illegals but they have not been charged with or convicted of a violation of any Australian law. They call them economic migrants before there has been any assessment of their claims for refugee protection. They and their media mates on talkback radio vilify and demonise them. Recently the Prime Minister has been reported as saying that these boat people are “intimidating us with our decency”, a very odd grammatical construction. I am unsure what exactly he means but I suspect he means that they are exploiting our decency to secure their admission.

The truth, however, is that for over 10 years our political leaders from both major political groupings have been betraying our compassion. Most Australians are fundamentally decent and compassionate but they respond to the propaganda woven by politicians and media commentators. They have been betrayed by those who say that Australians are hard-hearted, unsympathetic, closed and cold.

We are not and we do not want to be. Our aspirations are to be people of decency and compassion who reject inequality and discrimination and look for Australia to be a society based on a fair go for all. We have often failed to live up to those aspirations but they are the values we hold dear. We are all betrayed when we are told we are otherwise.

I have been asked by many journalists and media commentators whether the actions of recent governments towards asylum seekers have damaged Australia's international reputation. Clearly they have and I don't like that. I don't like Australia's good name being blackened by our leaders. But I have a far more serious concern. What they are doing is damaging us. It is destroying our hopes and aspirations, our self esteem, our sense of honour, our compassion and our decency. Our leaders, from both major political groupings, are turning us into a nation of thugs. Look what they have done to us and what we are doing ourselves.

In the account of the crucifixion of Jesus in the Christian scriptures, Jesus meets a group of women who "mourned and lamented for him". He tells them, "Do not weep for me; weep rather for yourselves and for your children".

I do weep for the asylum seekers. But even more I weep for ourselves and for our children.

- Chris Sidoti is national spokesperson for the Sydney-based Human Rights Council of Australia, and former Commissioner of the Human Rights & Equal Opportunities Commission of Australia.

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Economic realpolitik vs development for all  

Few issues reveal the North-South divide as sharply as the debate on the right to development

IN 2001, the Mandate of the UN Working Group on Development was extended for another three years, with 48 States in favour, two against and three abstentions. Few items on the Commission's agenda reveal the political divide between the delegations of the North and the South as keenly as the debate on the right to development.

The Commission established the mandate of Independent Expert on the right to development in 1998. At its 58th session, the Commission has before it Arjun Sengupta's report and an addendum covering his visits during 2001, along with a report of the High Commissioner outlining initiatives undertaken by her office in terms of development, particularly the eradication of poverty.

Arjun Sengupta's report begins by addressing the conceptual and legal basis of the right to development. He notes that while the right was originally about maximising Gross National Product (GNP), it now incorporates social, political and cultural processes into the economic process of realising all rights and freedoms. The right to development aims at the constant improvement of the entire population, based on their meaningful participation and principles of justice and equity. The report continuously stresses the indivisibility and interdependence of all rights, and holds that the right to development underlines all rights.

Highlighting a constant tension at the Commission on Human Rights, the Independent Expert stresses that national action and international cooperation must reinforce one another. In terms of international cooperation, Arjun Sengupta states that it is not just a question of the international community reaching its target pledge of 0.7%GNP to foreign aid, but other initiatives such as assistance with new technologies, access to markets and intellectual property protection. 

THE most important aspect of Arjun Sengupta's report is his proposed mechanism for the implementation of the right to development: development compacts.

In a seven-step process, the Independent Expert first recommends that the international community choose a few key rights to be realised immediately. He suggests the halving of poverty by 2015 and the realisation of the rights to food, primary education and primary health care as priority rights. Developing States will then apply for a development compact, which they will design with technical assistance, and would be supported in implementing by civil society and a designated support group. Development compacts would be financed by a fund that would require an estimated $50 billion a year to meet the compacts' needs for realisation of the selected rights.

Two potential models for the fund are set out by the Independent Expert, who stresses that States would have to recommit to development assistance. Only five States - Denmark, Luxembourg, the Netherlands, Norway and Sweden - currently regularly achieve the 0.7% GNP target each year. Most others fall miserably short.

At the heart of the proposed mechanism is the idea that developing countries must have ownership over the process of development. They must be involved in the design, implementation and monitoring processes and not feel that the method of development is being imposed upon them. Development compacts based on partnership and equality, would only comply with a human rights approach to development, but would have a greater chance of success in practice.

The addendum to Arjun Sengupta's report considers some responses on the proposed compacts that have emerged during visits to key organisations, including the IMF and the World Bank. He notes some scepticism from the IMF that human rights carry obligations beyond States, and concern over the notion of international cooperation as an obligation.

The Independent Expert notes that the response of the US State Department is marred by a belief within the US Government that there is a division between the sets of rights enumerated in the two Covenants, and a belief that economic, social and cultural rights are not justiciable. 

While the Independent Expert's report is sophisticated, it is unlikely that it will meaningfully correspond with the more simplistic debate on development at the Commission. While the right to development was defined in the 1986 Declaration on the Right to Development, States still seem to be grappling with what it actually means. 

Since the first UN World Conference on Human Rights in Tehran in 1968, the relationship between development and human rights has been at the forefront of human rights discourse. Philosophically, it marks the intersection between several key debates in human rights:  the relationship between individual and collective rights, the priority to be accorded to different sets of rights and the process of recognition of new rights.

In simple terms, the right to development necessitates greater attention to be paid to economic and social rights, and as Philip Alston has put it, that “some forms of development cooperation should be seen as entitlements, rather than acts of charity.”

The source of the right to development is also disputed. Is it part of the right to self-determination, in which case it can only be a collective right, and would only be a right to pursue development, not live in a developing society? Is its genesis found in Article 28 of the Universal Declaration on Human Rights which provides that “everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration can be fully realized”? Is this basis not undermined by the fact that this provision failed to be picked up in either of the International Covenants has rendered it null and void.

Increasingly it would seem that the right to development underlines general provisions on economic and social rights. While there was once opposition to its very existence, the debate now seems to focus on its parameters.

The discussion of the nature of the right to development and the methods by which it should be implemented reveal deep schisms within the Commission and the international community.

At one end of the spectrum is the United States, often supported on this issue by Japan.

The US links civil and political rights to development, and emphasise the importance of free markets, transparent financial institutions and the global market to realisation of development. The right to development, Japan has argued in the past, is not a right by which developing countries can claim assistance from developed countries, nor can they use it to call for a reduction or cancellation of their foreign debt. Other Western States also emphasise that the primary responsibility for realising the right to development lies with the States themselves and note the role of democracy and good governance in realising the right to development. 

However, they adopt a more balanced approach to international factors. The European Union, for example, recognises the need for international cooperation to assist under-developed countries and generally notes the impact of the Bretton-Woods institutions on the feasibility of meaningful development in the South.

Balancing out the US/Japanese position is that of delegations of the South. They hold that the obstacles to the right to development lie in the North; mainly with globalisation. They focus on the detrimental impact of international trade, foreign debt and structural adjustment practices on the attainment of basic right. Each year, Cuba and Iraq raise economic sanctions as an impediment to the right to development.

Article 3 of the Declaration on the Right to Development provides that “States have the primary responsibility for the creation of national and international conditions favourable to the realization of the right to development”. The use of the phrase of “national and international” conditions covers the spectrum of positions on this issue. 

AS emphasised by Arjun Sengupta, the solution to the right to development cannot lie solely within domestic jurisdictions or solely with the international community. It is too easy for developed States to deny any responsibility for the international impact of their economic and trade policies, and the effect of those financial institutions that they have established.

Similarly, it is a cop out for developing nations to blame the state of development on the international community without reflecting on their own governance, policies and financial priorities.

As noted by one delegation at the 57th session, it is often those States with the biggest per capita military budgets that complain most that the West is starving their villages and robbing their children of education.

In the 16 years since the General Assembly adopted the Declaration on the Right to Development little real progress has been made at the Commission on Human Rights towards its realisation. The politics of the international economic order seems to take precedence over a meaningful dialogue on achieving development for all.

Until States take responsibility for their own policies that are impeding universal development, it does not seem likely that the Independent Expert's work can make a real difference.

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Global Compact: An unprofitable concern

Businesses are more likely to misuse their association with the United Nations than to use it to improve their human rights records

SINCE its launch on 26 July 2000 at a special session organised in New York by United Nations Secretary General Kofi Annan to adopt the "Guidelines for Cooperation between the United Nations and Business Community", the Global Compact has been marked by controversy. Some 50 transnational companies from such diverse sectors as media, mining, automotive, services, telecom, banking, petroleum, pharmaceuticals, software and footwear joined 12 labour associations and NGOs to sign a 'global compact' that commits the multinational corporations to nine loosely-worded principles.

These principles are drawn from the Universal Declaration of Human Rights, the International Labour Organisation's Fundamental Principles on Rights at Work, and the Rio Principles on Environment and Development. The Compact enjoins companies to support human rights, eliminate child labour, allow the formation of free trade unions and refrain from polluting the environment wherever they do business. Many members of the Global Compact such as shoe firm Nike and Royal Dutch Shell, which face accusations of serious human rights abuses, can now wrap themselves in the Global Compact logo to rebrand their image.

According to Mr Annan, “companies should not wait for governments to pass laws before they pay a decent wage or agree not to pollute the environment.”

“If companies lead by example, the governments may wake up and make laws to formalize these practices.”

Mr Annan's effort however is unlikely to change the behaviour of the multinational companies or the fate of the victims of abuses.

It took 18 months to negotiate a declaration of principles rather than a legal code of conduct since Mr Annan first proposed the idea of the Global Compact at the World Economic Forum summit in Davos in January 1999. In the 1980s, the UN made a similar effort to forge international standards for foreign investment and workers' treatment. But it collapsed after rights groups, United Nations officials and executives clashed over the terms of the agreement.

Partners in the Global Compact are more likely to misuse their association with the UN rather than using it to improve their human rights records.

On 1 August 2000 after the UN Special Session, Nike CEO Phil Knight in an article in the London's Financial Times pledged to abide by international labour standards. But Nike has been the target of one of the most active global campaigns for corporate accountability and has aggressively opposed the only independent monitoring programme - the Worker Rights Consortium (WRC) - supported by unions and human rights groups. Mr Knight withdrew a $30 million donation to the University of Oregon after the University joined the WRC. Nike also withdrew from its multi-million dollar contracts with the University of Michigan and Brown University after they joined the WRC.

On 24 October 2000, the BBC television programme Panorama broadcast a news story on a sweatshop in Cambodia where illegal under-age workers were working for up to 16 hours a day, seven days a week for Nike and garment company Gap. When challenged by the BBC, both Nike and Gap claimed they were unaware of the under-age workers and dismissed the incidents as ‘isolated’.

Taking a cue from the United Nations, the Asia Pacific Forum of National Human Rights Institutions in July 2001 invited a representative of mining company Rio Tinto, to speak at its Regional Workshop on Economic and Social Rights held in Hong Kong. Both the UN and the Asia Pacific Forum of NHRIs sought to downplay the facts about the role of Rio Tinto in contributing to human rights violations across the world.

 As early as the 1970s, Rio Tinto was violating basic international standards by illegally mining uranium in Namibia. According to the United Nations Council for Namibia, the uranium was being mined “by virtual slave labour under brutal conditions”. Profits from the mining helped support South Africa's apartheid government, which then controlled Namibia.

The United Nations Council explained that these activities were “in direct violation of United Nations resolutions, of a Decree enacted by the United Nations Council, the legal administering authority of the Territory, and of an advisory opinion of the International Court of Justice”. The United Nations Council also stated that “[o]ne of the most disturbing facts to emerge from the uranium hearings … was the existence of a ‘security scheme’ at the Rossing mine,” and the chairman of Rio Tinto's admission that a well-armed “‘private army’” was in place to deal with civil or labour unrest.

In August 2000, the reputed Australian television programme Dateline aired a report on Rio Tinto's operations in Brazil. The programme reported that local inhabitants who were looking for small amounts of gold on the company's mine were shot and killed by company security guards.

According to the report, “one former guard has now told Dateline the company's head of security had urged him and his colleagues to use violence and torture to discourage the miners”. Dateline also provided credible reports of mine workers being subject to lead poisoning at highly toxic levels - 77 mg per 100 ml of blood - while the company's doctors told one such worker that this would cause him no harm. The company had also made employees spy on trade union members and fired those who it found were active in the union.

Notably, Principle 2 of the Global Compact calls on business to “make sure their own corporations are not complicit in human rights abuses” which Kofi Anan has specifically explained includes “mak[ing] clear in any agreements with security forces that they will not condone any violation of international human rights laws”.

Principle 3 of the Global Compact calls on business to guarantee “freedom of association and the effective recognition of the right to collective bargaining”. And, in September 2000, residents of Bougainville filed a lawsuit in the United States alleging Rio Tinto's responsibility for environmental disaster, toxin exposure, and the murder or residents committed in complicity with the local defence force. These lawsuits are themselves evidence of the close parallels between Rio Tinto's actions of the past and present.

Mr Annan said the United Nations does not have the “capacity or the mandate” to police the companies. Accountability therefore remains a problem as many governments violate human rights for the benefit of the multi-national corporations. Hence, the UNDP suspended its partnership programme, Global Sustainable Development Facility, with Dow Chemical, Rio Tinto, and biotechnology giant Novartis in June 2000. Under the Global Compact, each company now describes the ‘honouring’ of its commitments on the Global Impact webpage. But, such claims are unverifiable.

Mr Kofi Annan has been attempting to ‘globalise’ the UN through multinational corporations. The UNDP's partnership with BP Amoco in Angola and Chevron in Kazakhstan; the co-chairing of Business Humanitarian Forum by then UN High Commissioner for Refugees Sadako Ogata and the president of UNOCAL; and UNESCO's partnership with Disney and McDonald's to present the Millennium Dreamer Youth Awards, all had the blessings of the Secretary-General. UNOCAL has been accused of serious human rights in complicity with the military junta of Burma. A federal judge in California ruled that UNOCAL can be tried in United States courts for human rights abuses in Burma. In this context, the non-recognition of the Burmese forced labourers as refugees by the UNHCR, many of whom were forced to flee because of UNOCAL's project raised suspicions about UNHCR's conduct.

Victims of abuses across the world consider the United Nations as the only remaining forum for justice. And yet, many multinational corporations which have directly been involved or contributed to serious human rights abuses are now being roped in to spread the message of the UN. The same corporations can now “join with the United Nations in partnership projects, either at the policy level - for instance, a dialogue on the role of corporations in zones of conflict or at the operational level in developing countries, such as helping villagers link up to the Internet, or strengthening small- and medium-sized firms.” The Ogoni problem arose partly because of the complicity between military dictators and the Shell. It finally led to the execution of Ogoni leader and Nigerian writer Ken Saro-Wiwa in December 1995 as General Sani Abacha sought to silence Ogoni protests.

The participation of a few international NGOs has provided further legitimacy to the Compact. Many such NGOs stated that participation in the Global Compact did not mean it would refuse to criticise or publicly expose companies that were complacent about human rights violations. Dialogue with multinational corporations is essential but whether it is necessary to be part of the same club is a highly debatable issue.

The Global Compact website states, “The Compact is an initiative of the UN Secretary-General. Responsibility for overall stewardship, therefore, lies with him.” The Secretary-General had to exercise this responsibility by deciding in February 2002 not to renew a UN contract for his special advisor for the UN Global Compact, Mr Goran Lindahl, who was CEO of Asea Brown Boveri (ABB) until last year.

This according to Corporate Watch, points to “some fundamental weaknesses of the Global Compact”. Early in February 2002, Swiss-Swedish multinational energy giant Asea Brown Boveri (ABB) revealed that former CEO Mr. Lindahl, along with his predecessor Percy Barnevik, had taken retirement packages totalling about US$137 million, nearly $53 million of which went to Mr. Lindahl.

Unless the United Nations develops mechanisms to ensure accountability of the private sector for human rights violations, “a value-based platform designed to promote institutional learning” such as Global Compact will not improve the situation. The image of the UN and the few NGOs who are part of the Global Compact is at stake.

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Report suggests need for Independent Expert

THE Secretary-General, in his report on Impunity, has summarised the responses of six States and three non-governmental organisations to the proposal to appoint an Independent Expert to examine the issue of the impunity, with a view to a decision on this matter in the current session. The report also provides information on legislative, administrative and other steps these States have taken to combat impunity for human rights violations. The report builds on similar submissions the Secretary-General has presented to the Commission at the 56th and 57th Sessions - E/CN.4/2000/90 and E/CN.4/2001/88.

While the international community seeks to eradicate impunity to human rights violations, disagreement persists over how worthwhile the appointment of an Independent Expert would be in achieving that objective. Argentina, Cuba and Peru were in favour. Cuba, however, added a few qualifications, such as the Expert's mandate should extend to recommendations for the progressive development of international standards of human rights monitoring while maintaining respect for the key role of the State in actions to combat impunity. Guatemala was not in favour of such an appointment on the ground that the topic was too broad for one Expert to deal with. The Guatemalan government also contended that, as the causes of impunity in Guatemala have already been identified, it would be more beneficial if the existing thematic investigators incorporated the study of impunity into their work.

Meanwhile, Norway rejected the contention contained in the proposal that human rights violations constituted a criminal offence and maintained that the responsibility for human rights violations lay with the State. Considering this objection it was not in favour of the appointment of an Expert on impunity. Azerbaijan's response did not appear to cover this matter but was concerned with domestic arrangements for compensating victims of human rights abuses.

Meanwhile, of the three NGOs consulted, the Association for the Prevention of Torture and the International Union of Lawyers supported the creation of an independent expert on impunity. The latter added the proviso that the expert's mandate should take into account that action against impunity can take many forms depending upon country-specific cultural, legal and judicial circumstances. The International Commission of Jurists stated that as impunity was a broad and complex topic it should be split into two areas. According to the group's submission, one expert should address impunity for violations of civil and political rights and another should address impunity for violations of economic and social rights, as the two categories often give rise to different problems and should therefore be considered separately.

PROVISIONS that countries have made to combat impunity for human rights violations fall into three broad categories: institutional measures, measures involving a legal framework or legislative acts, and political initiatives. The country responses were not structured in any way and are discretionary. They also varied in length and detail so the areas mentioned above were not covered comprehensively and in some cases not at all. The report involves condensing and summarising the original responses. It provides an indication of each State's priorities and recent actions in the prevention of impunity.

The first category involves a review of the various institutional measures that States saw fit to mention. Azerbaijan, Cuba and Norway submitted briefer reports; they were silent on institutional provisions to combat impunity and were more concerned with legislative methods. Argentina, in contrast, outlined several institutions that are concerned with various areas of potential impunity. There are two departments vested in the State's executive which have a wide-ranging mandate to prevent human rights violations. They are concerned with the general promotion and protection of human rights while forming an umbrella to implement and coordinate the work of more specific bodies such as the National Commission on the Forced Disappearance of Persons and the National Institute to Combat Discrimination, Xenophobia and Racism.

Guatemala's report was similarly detailed with regard to institutional provisions against impunity. Various organs concerned with human rights have been strengthened, such as the Office of the Human Rights Procurator. There have also been extensive efforts to “support and strengthen institutions and help improve the system of justice in Guatemala”: a commission was set up with this objective.

Other measures to this effect are the establishment of a career judicial service and an anti-corruption prosecutor's office as well as attempts to improve the professionalism of the police service and ensure it reflects Guatemala's multi-ethnic society. Furthermore, there have been extensive measures to end the intimidation of judges and other officials involved in the administration of justice, to guarantee their competence and combat corruption in the judiciary. Peru's institutional attempts to combat impunity have involved the establishment of a temporary body known as the Truth Commission, whose functions are to compile a report on the crimes and human rights violations committed by terrorist organisations and State agents; to propose moral and material reparations for those affected; and to recommend preventative legal and institutional reforms.             

THE second category involves a review of attempts to combat impunity through legislative measures or a legal framework. Argentina stated that its Constitution contained an article giving the Supreme Court and the lower courts power to govern all cases relating to the Constitution and that its two legislative chambers have both established commissions on human rights and guarantees for multiparty representation. The government also stated that the remedies of amparo and habeas corpus are available to citizens who have their fundamental rights violated. Argentina is also implementing a progressive redress policy to compensate those who suffered human rights violations prior to the re-establishment of democracy at the end of 1983.

Azerbaijan's response was comprised solely of legislative measures. These provisions include Article 68 of the Constitution, which states that victims of crime or the abuse of power are entitled to compensation, and various national laws such as the state Protection Act of December 1998, which outlines measures to guarantee the safety and social protection of victims and witnesses in criminal cases. According to Cuba's report, the government's legislative attempts to prevent impunity included a call for the implementation of the Convention on the Prevention and Punishment of the Crime of Genocide in the case of the United States' economic blockade of the country.

Guatemala, as with Argentina and Azerbaijan, drew attention to articles concerned with human rights in its Constitution: for example, Article 29, which guarantees free access to the courts and government agencies. According to the report, the government's legislative provisions complement its institutional ones in attempting to create an efficient and effective legal system where there is no opportunity for impunity to occur. In 1995, Congress amended the Penal Code to incorporate an article which characterised torture as an offence.

Norway's report stated that it is the responsibility of States to combat impunity. Its definition of human rights violations which require compensation has recently been expanded and is administered by the State.

Legislative measures formed the bulk of Peru's response. A commission is currently preparing studies and formulating recommendations with regard to international humanitarian law in Peru and the Government stated that it attaches great importance to the decisions and recommendations of international human rights bodies; a council has been set up to establish the machinery for the implementation of these. Many of the initiatives are concerned with providing the victims of recent crimes against humanity with redress (including health and education services to be provided by the Government) and exonerating the innocent through mechanisms such as the Pardons Commission. Other means of redress aim to prevent the repetition of such acts including, for example, the legal characterisation of the crime of extrajudicial execution and the trial of many senior military and police officials.

The International Union of Lawyers also detailed developments in international criminal justice which attempt to bring to justice perpetrators of human rights violations in the States of Sierra Leone, Cambodia, the former Yugoslavia and Rwanda. In cases such as these the Union believes that the jurisdiction of national courts should take precedence in dealing with those accused of violations of international criminal law. This has been the case in Rwanda where, owing to the vast number of prisoners awaiting trial, the traditional system of gacaca or “wise men's justice” has been used.     

IN terms of the third category, Guatemala and Peru provided strong evidence of a direct political will to combat impunity. The former has demobilised paramilitary groups, reorganised the army and declared its two principle human rights objectives to be public safety and justice. The latter gave details of its campaign against corruption, headed by the Ministry of Justice, which seeks to analyse the causes of corruption and to prepare a national agenda to combat it.

Considered together with the Secretary-General's previous reports, the current report suggests the potential for a majority in favour of the appointment of an Independent Expert on impunity. The current report also provides evidence of ongoing State-level attempts to combat impunity, especially on the part of countries that have experienced institutionalised human rights abuses (Peru and Argentina) and/or a corrupted system of justice (Guatemala). Legislative methods appear to be the most widely-used means of effecting these improvements.

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Unlikely cure for a new nation’s old wounds

The human rights tribunal set up by Indonesia offers few hopes of justice for its former territory

PERCHED at the eastern edge of the 14,000-island archipelago in the Indian Ocean that makes up Indonesia, a tiny nation waits to be born.

Midwifed by the United Nations, East Timor is being seen as a major success story for the world body, and a model for future peacekeeping operations. But even as the paraphernalia of a democratic State - a Parliament, courts, a police force, an army - is put in place in readiness for its entry into the community of nations, East Timor is also looking to come to terms with its harrowing past.

On 30 August 1999, the East Timorese voted for independence from Indonesia during a popular consultation organised under the auspices of the international community. Far from accepting the results, the Indonesian military and militia responded by killing, torturing and deporting thousands of Timorese.

  In response to the gross violations of human rights, the United Nations established an International Commission on Inquiry on East Timor.

On 31 January 2000, the Commission stated that Indonesian military personnel and government members had been clearly involved in the violence against the East Timorese people. It further asked the UN Security Council to establish an international tribunal to judge the violations of human rights committed in East Timor. The Security Council, comforted by the assurance that a national tribunal would be established within the country, did not give a positive answer and left the initiative to the Indonesian government. It is only two years later, following constant pressure from human rights organisations, foreign governments and aid donors, that the tribunal has been set up.

On 31 January 2002, the Indonesian government cleared one of the last few obstacles to the establishment of the long delayed tribunal, with the swearing-in of 11 of the 18 non-career judges previously appointed by President Megawati Sukarnoputri.

The tribunal is also expected to serve as a model for all future States emerging from violent conflicts and looking to build a State unhindered by the weight of unresolved traumas.

  And, even as the first trial began on 15 March, in the full glare of international attention, it is becoming apparent that the shedding of East Timor's historical baggage will not be easy.

INDONESIA took the first step towards setting up the tribunal with the adoption of Law No.26/2000 on human rights abuse trials. It was supplemented by Decree No.53 of April 2001 which provided for the establishment of four human rights court in Jakarta, Medan (North Sumatra), Surabaya (East Java) and Makassar (South Sulawesi). The appointment of the 11 judges instituted the Jakarta District Court as the first court to try cases of human rights violations.

But if the establishment of the court is meant to be an opportunity to establish the truth and to condemn those found guilty, say observers, the present effort may just end up being a masquerade of justice.

The stumbling block of the process is the fact that the procedure under the tribunal is not free from political interference. In order to be tried by the human rights tribunal, a violation has to be previously recognised by the House of Representatives as being of a ‘human rights nature.’ The absence of separation of powers opens the door to major cases of impunity; if the House fails to classify a case as being a gross violation of human rights, there is no guarantee that the violation will be brought before any other court.

  This provision has already worked to the advantage of several police and military commanders allegedly involved in the Trisaki and Semanggi incidents. Scheduled to appear before the National Commission on Human Rights violations on 31 January 2002, none of the four officers showed up. The House of Representatives had earlier declared that these incidents should not be considered human rights violations. The political incursion into the judicial process that is provided by law No 26/2000 prevents any possible action to enforce compliance with the justice process. The suspects are left untried if the military tribunal decides not to prosecute. The inquiry teams set up by the National Commission have limited powers and cannot enforce decisions.

It is also provided that the human rights court will be competent to hear cases of rights violations that took place just prior to and immediately after the 1999 East Timor popular consultation, and also the Tanjung Priok Muslim shootings in 1984, where 42 people died in clashes with military troops.

This appears to refer specifically to the attack on pro-independence leader Manuel Carrascalao's house in Dili on 17 April 1999 which led to the deaths of 12 persons, the massacre of refugees in a church in Liquica in April 1999 the attack on the home of Dili bishop Carlos Filipe Ximenes Belo on 6 September 1999 and the killing of 26 persons in a church in Suai in September 1999.

Considering the magnitude of the human rights violations that have taken place since 1975 under Indonesian occupation, it is not clear why the competence of the tribunal to try cases has been restricted to the period from April 1999 September 1999 and to the Tanjung Priok incident of 1984. This will undoubtedly allow past international crimes to stay unpunished and reduce chances of justice being done. Human rights organisations have also raised concerns about the fact that there is little chance of seeing crimes against women tried in the court.

Finally, only those cases that took place in three districts of East Timor will be taken up, leaving atrocities committed in the 10 other districts unexamined. 

In January 2000, the Human Rights Commission issued a comprehensive first list of suspects. In September 2000, the Indonesian prosecutor whittled it down to 23 suspects. The final list put out by the Attorney General's Office has named 19 suspects to appear before the human rights court. This list includes senior and mid-ranking military and police officers.

The truncated list raises several concerns about the credibility of the justice process. Although it is fundamental for the reconstruction of the East Timor nation that justice be done, it is feared that the tribunal may not reach the highest level of military command, as intended.

Conspicuously missing from the list of the accused is Major General Wiranto, who, as head of the Indonesian forces, is alleged to have been involved in a series of killings and destruction after the 1999 consultation. Similarly, two others - the then Defence Minister and General Lumintang - are not on the list although the latter has been declared by a US District Court as being 'both directly and indirectly responsible for human rights violations committed against' the East Timorese in 1999.

On 24 October 2001, a coalition of East Timorese non-governmental organisations (NGOs) issued a statement to the United Nations saying: “We all must face the reality that... [Indonesian courts are] not capable of holding those responsible to account. After initial glimmers of hope, subsequent political turmoil and instability and ensuing continual revisions to the mandate and scope of any Ad Hoc Tribunal which is to be established, ha[ve] clearly demonstrated that Indonesia is both incapable and unwilling to take responsibility for prosecuting those culpable for the crimes against humanity in East Timor.”

Finally, there are real and justified fears that the Indonesian tribunal will be a tribunal only in name. As a group of scholars and lawyers said, “[g]iven the current political climate in Indonesia, convictions of high-level military personnel seem unlikely.”

Questions have also been raised regarding the extent to which the tribunal will comply with international legal standards on the independence of the judiciary, the protection of witnesses, and the rule of law.

The independence of the appointed judges is a key issue. The nomination of Judge Rudi Muhammad Riski is particularly objectionable as he 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. Special care should have been taken for the selection of judges for a tribunal of this importance. It is not sufficient for Supreme Court justice Bagir Manan to affirm that “the judicial system will be independent because the judges have high moral integrity.”

Other problems relate to procedure. The tribunal began functioning in February; the government meanwhile is still drafting the implementation guidelines of the human rights law. Moreover, there are no guidelines to deal with the protection of judges and witnesses even though a judge investigating corruption and human rights abuses was killed last year. Justice and Human Rights Minister Yusril Ihza Mahendra said his ministry was working on two governmental decrees, one on the protection of witnesses, the other on the right to compensation for victims.

The international community has an important role to play in the evolution of these trials. The chairman of the 57th session of the Commission on Human Rights, Leandro Despouy, while stating that the national tribunal should be given a chance, also warned the Indonesian government that if the national trials failed, an international tribunal would be set up.

He said the international community was watching the proceedings closely, that it “will monitor it intensively and is ready to provide technical assistance when needed.”

  It is not clear to what extent the international community will monitor the proceedings of the trials, especially in view of the lack of provisions for the presence of international observers.

Although being national in scope, the tribunal is, in principle, required to adopt international humanitarian laws, providing for crimes against humanity, torture and genocide.

Ultimately, it is the political will of the Indonesian government that will prevail. But the CHR should find mechanisms to monitor the proceedings of the trial to ensure its conformity with international standards.  

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