HUMAN
RIGHTS FEATURES
SPECIAL WEEKLY EDITION FOR THE DURATION OF
THE
58TH SESSION OF THE
COMMISSION ON HUMAN RIGHTS
(GENEVA, 18 MARCH 2002 - 26 APRIL 2002)
(Voice
of the Asia-Pacific Human Rights Network)
(A
joint initiative of SAHRDC and HRDC)
B-6/6
Safdarjung Enclave Extension, New Delhi 110 029, India
Tel:
+91-11-619 2717, 619 2706, 619 1120; Fax: 619 1120
E-mail:
hrdc_online@hotmail.com
In Geneva contact: (Mobile) 79-589 6671
|
| ISSUE
1 |
18-24
March 2002 |
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.
TOP
|
|
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.
TOP
|
|
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.
TOP
|
|
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.
TOP
|
|
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.
TOP
|
|
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.
TOP
|
|
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.
TOP
|
|
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.
TOP
|
|
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.
TOP
|
|
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.
TOP
|
|
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.
TOP
|
|
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.
TOP
|
|
|
|
Comments and
suggestions are welcome.
Please send all
communication for this publication to:
HUMAN
RIGHTS FEATURES
Phone:
In
Geneva: (+) 79-589-6671
Email:
hrdc_online@hotmail.com
|
HRF Team
Ryan Goodman
Ravi Nair
Suhas Chakma
Stephanie Schlitt
Andrea Coomber
Audrey
Guichon
Jeremie
Gilbert
Daniela
Kastner
Courtney
Brown
Alain
Sanboujian
Rineeta Naik
Aman Kumar Jha
|
Published
jointly by:
Human Rights Documentation
Centre (HRDC)
2013 S. Compton Avenue
St. Louis, MO 63104 USA
Tel: (+) 773-702-0348
Fax: (+) 509-463-1937
Email: info@hrdc.net
and
South Asia Human Rights
Documentation Centre (SAHRDC) [Editorial Office]
B-6/6 Safdarjung Enclave
Extension
New Delhi 110029 INDIA
Tel: (+) 91-11-619 2717, 619
2706,
Fax: 91-11-619 1120
Email:
hrdc_online@hotmail.com
Web: http://www.hrdc.net/sahrdc/
|
|
|