INTERVIEW

Prof:Vitit Muntarbhorn

‘We still need mechanisms other than UPR’

...and Special Procedures’ access to countries is very important, says Rapporteur

Human Rights Features (HRF): First, could you tell us of your initial impressions as Chairperson of the Coordination Committee on Special Procedures? What do you feel the Coordination Committee has brought to the table? 

Prof. Vitit Muntarbhorn (VM): This is the second year of operation of the Coordination Committee. Basically, I think we can say that it is work in progress. The basic purpose of the Committee is to facilitate the work of over 40 Special Procedures, and it is very important that we have a focal point where we can facilitate work as well as exchange information and back up each other's work. So the last two years have been this learning lesson.

HRF: You expressed in your statement to the first session of the Human Rights Council that Special Procedures "wish to be actively involved with the process of review". There are many States that do not interpret this review as "defining the designs for reinforcement of Special Procedures", as you put it. The same applies to the role of Special Procedures in the Universal Periodic Review (UPR) process. What are your feelings on how effective your suggestions are likely to be at this early stage? 

VM: Well, as we all know, discussions on the Universal Periodic Review are taking place now and the Special Procedures have already said in the common statement to the Human Rights Council they would like to have full access to the UPR, including States integrating the findings and recommendations of the Special Procedures on countries in the discussions, as well as to use the cooperation given to Special Procedures as a criteria to assess States' dialogue in the UPR. 

Two, we have to wait and see how they interpret the term "interactive dialogue". I would think that it is a constructive dialogue but very open to a variety of suggestions and opinions. We would very much like to see the Special Procedures' recommendations mainstreamed and integrated into this process, particularly in seeing them as essential criteria for measuring what states are doing in the dialogue and process.  

Thirdly, although of course discussions are now taking place regarding the UPR and we shouldn't presume too much about what will be agreed upon, I think the UPR will be a sort of middle-pitch assessment of States' implementation of human rights. I think we still need mechanisms which offer more in-depth assessment of State compliance of human rights, and that may mean other possibilities beyond the UPR, such as emergency sessions, as we have recently seen.  And the other mechanism is of course the work of the Special Procedures as independent experts providing assessment and inputs. 

HRF: At this early stage, certain preliminary suggestions have begun to emanate, including the establishment of a code of conduct for Special Procedures in order to "improve the mandates' prestige, credibility and transparency". This code of conduct would establish specific criteria of admissibility of communications as well as guidelines for country visits. Do you see any merit in such a code? 

VM: The idea has been raised several times already. The response of the Special Procedures is that we have already evolved a manual which guides our operations, ranging from selection of mandate holders to field visits, bearing in mind the independence of the members concerned. This manual has been revised recently and is available on the Internet in draft form.  We hope that governments and other actors will look at the manual and provide suggestions for improvements at this stage while we still have a draft. So, in fact, the manual acts as some sort of guidance for our work, and we would hope that that would be a good convergent instrument that States and other actors would be satisfied with. 

HRF: The manual has just appeared on the website of the Special Procedures, but could you just explain to us some new elements in its revision? 

VM: The manual dates from the late 1990s so obviously things have changed since then, for example the number of mandate holders, country and thematic, and so on. New elements include: in the beginning we talk about the functions of the Special Procedures in a more succinct form, ranging in their role from those who help to analyse the situation in a country, the fact that they advise on recommendations or measures to be taken by governments and other actors, the fact that they have to alert the UN system on particular emergencies, and very importantly of course that they advocate of behalf of those who are affected by human rights situations, particularly in communicating with governments and asking for redress, as well as interacting with the totality of the international community on the issue of human rights. 

HRF: On the process of transition, what was the sense among Special Procedures regarding the postponement of the presentation of reports in March at the final session of the Commission? 

VM: Well I think we all realised that the process is one of transition so obviously there have been uncertainties, and we are pleased that the Council is now going to be taking place and is going to be open to discourse with Special Procedures in the coming month. I would hope, as we said in our statement, that the dialogue will have enough time for us to interact with government and other actors. The process is to have at least one hour with the Special Procedures to present their reports as well as to have discussions. Whether we get one hour, we will have to wait and see. From my own experience I feel that I would have a little bit more time in practice in the General Assembly than in the Human Rights Council so I think that a one-hour dialogue would be the preferred method. 

HRF: Turning then to recognized limitations within the system of Special Procedures, looking at the disaggregated statistics of requests for visits and the percentage of refusals/non-responses (c. 70%), could the argument not be made that the system of Special Procedures is nowhere near succeeding in its objectives, nor can it do so without a reform of the system of invitations? Your own mandate is a case in point. 

VM: Well Special Procedures have always welcomed invitations, and particularly standing invitations. We actually noticed before the Human Rights Council that of the current members of the Council - 40-plus members - 17 have extended standing invitations to Special Procedures, so we do welcome that invitation to all Special Procedures to enable them to have access to countries. Now this particular challenge depends upon States' responses, governmental responses, of how they wish to cooperate with Special Procedures. It is very much dependent and incumbent upon the will of countries to enable us to have access and we hope that, particularly in the new Human Rights Council, that States will open the door more for us to have access physically to their countries. This access is very important to enable us to take stock of current situations in countries, as well as to learn directly from governments and other actors about developments and reflect these developments in our reports. 

HRF: Has the question of follow-up yet been addressed by the Consultative Committee? Would you personally see merit in the suggestion that follow-up be made a distinct agenda item of the Council, for example? 

VM: Well the question of follow up is always an important recurrent theme and there are different elements of follow up. There is, for example, the question of follow-up of the reports that we will be presenting these coming months, in terms of the operational improvement at the national level. So there's always been a question of follow-up of communications, particularly where we act on behalf of those affected by human rights situations. There is the question of follow-up after country visits, where we have access to countries, as well as to follow-up in terms of encouraging integration and mainstreaming of our recommendations into national operations, including UN country teams. So there are different elements of that follow-up and I would hope very much that the Human Rights Council will bear this in mind. 

HRF: In the deliberations of the Sub Commission regarding its own future, the point has been raised many times that better communication is required between Special Procedures and the Sub Commission. Has there been any discussion within the Coordination Committee regarding operationalising relations with the reformed body or other UN bodies? 

VM: From what I've heard about reflections from the Sub Commission, my understanding is that the Sub Commission views itself for the future as a sort of consultative body for human rights issues, but it would very much like to coordinate more with the Special Procedures. So I think we would welcome opportunities to interact more on that basis and a very important concern is to enable independence of assessment of human rights situations as well as to concretise actions to rectify situations where needed. 

HRF: You have requested that Special Rapporteurs and the Office of the High Commissioner for Human Rights (OHCHR) provide additional "human, material and financial resources that will enable them to respond actively to the challenges and expectations that arise in the context of the reform process." Have you seen any marked improvement with regard to financial and other support following the GA's doubling of the OHCHR's budget? 

VM: I can relay a very personal history on this, because I was a Special Rapporteur in the 1990s on children and I'm now Special Rapporteur on DPRK (Democratic People’s Republic of Korea). At that time, for example, I had a sort of part-time assistant who was carrying several mandates. Now, that situation has improved, even though our colleagues who are assisting us are still often carrying out other mandates beyond one mandate. So there is again work in progress there. But they let me know that there has been some other improvements. Number one, we have a quick response desk where communications generally are collected in computerised form by certain focal points of interchange within the OHCHR. We also have monthly interchange in terms of information between us, which is sent out by the OHCHR to all Special Rapporteurs, as well as bulletins coming out periodically per year.  So these are developments of a very positive kind, in terms of greater interchange of information. I would say that for the future, of course, we would greatly welcome the strengthening of support for Special Procedures. For example, I think logically every mandate holder should have one OHCHR staff member who is dealing pretty well full-time with the mandate. 

HRF: Could you comment on the balancing act that Special Procedures need to do, when there are intense political pressures operating as in your mandate on North Korea? 

VM: Yes, I think with a very sensitive issue such as the human rights situation in the DPRK, it is very important to have, in mind and in action, the implementation of human rights, bearing in mind interaction with various stakeholders in the process. In my work in the past two-three years a very important element has been the writing and preparation of the report, which I write myself actually, and submit it to the Human Rights Commission in the past and now the Human Rights Council, as well as the GA. And yet it is more than that. For example, an important role for Special Rapporteurs, including the one on DPRK, is to go out into the world and interlink with those who are involved in the situation. It is very important that I go out to meet NGOs in those countries that are dealing with the situation. It is very important that I go and see refugees or asylum seekers in those countries who have exited from DPR Korea. It is very important that I interact directly with governments and UN agencies throughout the year, in terms of sharing views, exchange of information, and using that organisation process to strengthen the support for the implementation of human rights within the DPRK. And the bottom line also is to be fair to all and to reflect the developments from a balanced perspective, using a variety of sources of information, so as to enable myself as a Special Rapporteur to make an independent assessment of what is happening in the country. 

HRF: Turning to an issue that is of interest to you in a different capacity, could you share your views on the current status of a movement toward a human rights mechanism for the Asia Pacific region? In view of your working paper for the last UN sponsored meeting in Beijing, do you believe we are any closer to the realisation of the recommendations that you proposed? 

VM: Yes, one of the key developments in terms of the Asia Pacific region in the past decade has been cooperation with the OHCHR, particularly on what has been called the sort of 'building blocks' approach. Countries of the Asia Pacific region have agreed upon developing four entry points for cooperation. Number one is national human rights institutions; particularly the growth of national human rights commissions. Number two is the question of national human rights action plans. Number three is the question of human rights education. Number four is the development of economic, social and cultural rights and the right to development. In my assessment for the United Nations last year, in a paper that I prepared, I did analyse the follow-through process of the four entry points and I noted that perhaps the most successful, or at least the most developed, activity has been in regards to national human rights institutions, several of which are supported by typical OHCHR help. So that's under the UN framework as agreed upon over the past year.

One, in West Asia we now have a charter of human rights with the possible establishment one day of an Arab committee of human rights. I would hope that this is a constructive development that provides an example to other regions, whereby groupings of countries on a smaller scale level within the Asia Pacific region could come together to adopt a human rights treaty as well as to have a mechanism of assessment and hopefully to provide access to those affected by human rights situations directly.  

We have in South Asia several specific human rights related treaties, one on child welfare arrangements, another one on trafficking, with regards to sexual exploitation, and a South Asian social charter as well, which targets itself to the elimination of poverty particularly under the millennium development goals. Now these are very specific cooperative types of treaties in terms of support for interaction between countries.  

Then thirdly, in the region most connected with me, the Southeast Asian region we have ASEAN, which since a summit just over a year ago adopted the idea of a possible human rights mechanism. Potentially this could be in the functionality of a women and child's rights commission. Now there's still no agreement on that but I would hope that ASEAN governments will look very concretely to a mechanism along that line, precisely because as of this year all ASEAN countries are all party to the CEDAW convention (Convention on the Elimination of Discrimination Against Women), as well as the Child's Rights Convention.  

So there is already global participation of all ASEAN countries in the process of promoting and protecting women's rights and child's rights.  

A certain value added by having a mechanism for ASEAN itself is to ensure that protection under the conventions is more accessible, particularly to people at the local level. 

HRF: Any additional thoughts? 

VM: I think from our perspective a very important concern is to invite governments, particularly, to enable us to have full access to countries. So the question of standing invitations is a very essential issue for cooperation between the mandate holder and the countries concerned. And, as we have implied already, the willingness to cooperate in a concerted manner on this front should be an important element also of assessing countries' implementation of human rights under the Universal Periodic Review.

Once perceived as a bastion of tolerance, Denmark has come under intense scrutiny this year following the newspaper publication of provocative sketches of the prophet Mohammed. The fierce reaction directed against the country included protests, arson, and the deaths of more than 100 people throughout the Muslim world.  

However surprised outsiders might have been to see small Denmark at the centre of this angry onslaught, long-time observers did not view the nation as such an unlikely instigator. Domestic Danish politics have centered on an increasingly venomous anti-immigration debate for some years - a debate spurred on by naked anti-Islamic sentiment.  

Last month, Denmark was reviewed before the 69th session of the United Nations Committee on the Elimination of Racial Discrimination (CERD Committee). The review, in the wake of the cartoons fracas, provides a timely opportunity to survey the worrying status of racial and social equality in one of the most 'progressive' countries in the world.  

An immigrant underclass, ghettoisation, and the long-term failure of integration, with the attendant social problems, has led to a dangerous conflation of race and religion in Danish political discourse. The hotter the issue of immigration has become in Denmark, the more cover has been provided for virulent racism to enter the social and political spheres. 

Previously, Denmark has had some of the most liberalized immigration laws in the world. Throughout the 1960s and 1980s, in particular, the country welcomed a large share of refugees and asylum seekers, believing that there were moral and pragmatic reasons for admitting them. With falling birth rates jeopardising the state's prized welfare system, leaders wished to sustain the size of the work force. Danes were also internationalists, donating a higher percentage of GNP (one percent) to development aid than any other developed country in the world. In years past, leaders have taken seriously their obligations under international law to secure human rights by providing refuge to the world's most vulnerable people. 

However, integration of the immigrants has largely been a failed project. Generally rather self-satisfied with their country, its institutions, achievements, and the 'Danish way of life', many Danes mistakenly believed that immigrants would recognise Denmark's inherent virtues and automatically assimilate themselves. Instead, as majority-Muslim immigrant communities grew, they have remained physically and economically isolated from the majority ethnic Danes. 

The Dansk Folkeparti (DF), or Danish People's Party, was established in 1996 as a populist and nationalist party centered on an anti-immigration platform. Their influence has grown over the decade, and their percentage of the vote has increased from 7.4 percent in 1998 to 13.3 percent in the latest elections in 2005. The party became a major force in Danish politics following the 2001 election in which the previous Social Democratic and Radical Liberal coalition was ousted by the Liberal-Conservative coalition, which rose to power only with the backing of the DF. 

The Dansk Folkeparti is explicit in its opposition to a multiethnic society. One of the party's campaign posters in 2001 featured a blonde girl with the slogan, "When she retires, Denmark will have a Muslim majority." The party's stock in trade over its relatively short existence has been inciting and provoking fear and suspicion of Muslims. 

The DF, once a member of the ruling government coalition, quickly became the driving force for a number of radical changes in immigration and asylum law. 

Family reunification can be achieved only by meeting stringent criteria: both spouses must be 24 years of age; spouses are obliged to offer proof that the marriage has been conducted voluntarily; the Danish permanent resident or citizen must not have been on public assistance for the prior 12 months and must lodge a 50,000 Danish krone (DKK) bond for support of the foreign spouse; the couple must lease or own an apartment of at least two rooms and a set number of square metres; most problematic of all, the spouse must prove the rather nebulous requirement that he or she has stronger pre-existing ties to Denmark than to any other country. These stringent requirements had an immediate impact. In 2001, 13,000 reunification permits were granted, but by 2003 the number had fallen to around 5,000. 

Policies for refugees and asylum seekers have also been strictly tightened. It is now impossible to apply for asylum at Danish embassies or consulates abroad. People who make it to Denmark and apply within the country are subject to new rules for acceptance, which have been cut to comply minimally with the Geneva Convention. Asylum seekers are not permitted to marry. Those allowed to stay do not receive permanent residence until they have been in Denmark seven years. Social assistance for newly accepted refugees and asylum seekers has been cut to 30-40 percent below what Danish citizens are entitled, a very low level on which to subsist in Denmark. 

The impact of these measures has been equally drastic. The number of people granted asylum in 2001 was 6,263, while in 2004 it was 1,607. The majority of centres for asylum seekers have been closed in the intermediate years. 

These radical measures have drawn criticism among Denmark's Scandinavian neighbors, particularly Sweden. Pia Kjaersgaard, leader of the DF, responded: "If they want to turn Stockholm, Gothenburg or Malmoe into a Scandinavian Beirut, with clan wars, honour killings and gang rapes, let them do it. We can always put a barrier on the Oeresund Bridge." The malcontents of the DF have gone on the offensive with their campaign against immigrants and, more specifically, Muslims, in the public arena wherever possible.  

In this political climate, the message to Denmark's Muslims is clear: not wanted here. 

Denmark submitted its sixteenth and seventeenth periodic reports to the United Nations Committee on the Elimination of Racial Discrimination (CERD) in June 2005, and was called before the Committee during its annual session on 10 August 2006. Subsequently, the CERD Committee released its concluding observations and recommendations. 

Of note are recommendations that Denmark consider changes to family reunification policies, as well as the lack of provision for battered spouses new to Denmark to remain legally. It is also advised to permit asylum seekers the opportunity to appeal a denial of their cases in court, rather than before a three-person Refugee Board, whose decision is final. Further, the Committee advocates for a review of the public assistance policy for refugees to ensure it does not exacerbate socio-economic marginalisation. 

Regarding explicit expressions of racial discrimination, the CERD Committee advocates for a relatively slim extension of bureaucratic authority to the relevant domestic agency to deal with complaints of racism. Such a light position seems unlikely to persuade the Danish government to take action in any future cartoons-like incident, which has further strained inter-ethnic relations and provoked an even greater backlash against Muslims. 

The CERD Committee also has little to say regarding the principal challenge to the elimination of racial discrimination in Denmark: the provocateurs of racial intolerance within the government itself. The text of the concluding observations does briefly mention that it is "concerned about hate speech by some politicians in Denmark." However, this soft-pedalling of the issue does not provide the needed impetus for internal reform within a government that has had to prosecute some of its own members (as admitted in the state report) for statements so derogatory and racist they could not be ignored. 

In Denmark, the government has played a role in the perpetuation and growth of racial discrimination. The Committee, while making necessary and relevant recommendations, has not issued a report that addresses the fundamental role that politicians and government play in ensuring racial equality, social cohesion, and the elimination of discrimination. 

As Europe grapples with immigration and integration issues, Denmark serves as a cautionary tale for the future of any tolerant, multiethnic society. The dynamics of populist anti-immigration politics, which tap into unease and discriminatory sentiments among domestic populations, must be kept in check by international bodies. Only by tasking member states with the obligations and responsibilities assumed through international treaties such as the Convention on the Elimination of Racial Discrimination, can a counterbalance be applied for the preservation of social equality.

Testing times for international law

In the aftermath of the Second World War, following the death and destruction that had engulfed much of Europe and Asia, the world vowed "never again". The atrocities and the crimes which were committed would never be permitted to occur again. A system of international laws and conventions was put in place in order "to save succeeding generations from the scourge of war" and "to reaffirm faith in fundamental human rights", according to the preamble of the UN Charter. Resort to armed force as a means of settling disputes was to become a thing of the past. The 1948 Universal Declaration of Human Rights set out that respect for human rights was the foundation of freedom, justice and peace in the world. Many of the practices that had taken place during the Second World War, the mass ill-treatment and murder of detained persons, the widespread use of hostages, the imposition of collective punishments, the deliberate attacks on civilians and their homes, were all made unquestionably illegal with the adoption of the four Geneva Conventions in 1949.  

The conduct of the recent conflict in Lebanon has seen the blatant violation of most of those fundamental principles of international law adopted in the immediate post-war period. Excessive and disproportionate force has been used under the guise of self-defence, civilians, mainly women, children and the elderly, have been directly targeted and killed, infrastructure serving no military purpose whatsoever has been destroyed, and indiscriminate weapons have been used widely and without restraint in violation of the principles of distinction and proportionality. Both Israel and Hezbollah, the latter to a much lesser extent, have demonstrated a remarkable disdain for many of the cardinal rules of international law by which they are bound. 

Israel commenced its bombardment of Lebanon following the killing of three members of the Israeli Defence Forces and the capture of two others by Hezbollah on the Israel-Lebanon border on 12th July 2006. Rather than seek a peaceful diplomatic resolution to the incident, Israel launched an aerial assault on Lebanon. Reputable sources have suggested that the military campaign against Lebanon had in fact been planned for some time and that the capture of the Israeli soldiers had provided the necessary pretext. From the perspective of international law, Israel's use of force in this instance fails to satisfy the legal requirements of the UN Charter, wherein it is clearly stated that force may only be used when authorised by the Security Council or in lawful self-defence. It is hard to view the attack and capture of a small number of IDF soldiers as an armed attack within the meaning of Article 51, in order to satisfy a claim of legitimate self-defence. Furthermore, the subsequent attack involved such a disproportionate use of force that it clearly exceeded the requirement that any force used in self-defence must be limited to that which is required to repel the "armed attack".  

It has been the violations of the jus in bello during the conflict, however, that have involved the most human suffering and attracted the greatest condemnation from international bodies and human rights organisations. As the conflict got underway, Hezbollah employed its guerrilla tactics against the Israeli army and navy. It also launched hundreds of Katyusha rocket attacks into northern Israel, many of them directed at civilian population centres. These actions led to the deaths of several dozen Israelis and forced thousands to seek safety in bomb shelters or to leave the area altogether. The firing of Katyusha rockets in this manner violated the principle of distinction, a central element of customary international humanitarian law, which obliges all parties to a conflict to direct their attacks at combatants only. Deliberately attacking civilians or civilian objects is a war crime under international law. 

The response of Israel to the capture of the two soldiers showed a patent disregard for the principle of distinction and utter contempt for the principle of proportionality. In the first days of the assault, Israeli warplanes bombed the international airport in Beirut, power and water supply stations and dozens of bridges throughout the country. The Israeli armed forces failed to direct their attacks solely at combatants or military objectives and were responsible for the destruction of countless civilian homes and many civilians, some of whom were reportedly fleeing after having been warned by the IDF to leave the area. Four members of the United Nations observer mission in southern Lebanon were also killed by Israeli shells, despite a member of the mission having warned the IDF repeatedly that their shells were landing too close to the UNIFIL position. 

Two other significant norms of international humanitarian law which were codified in Additional Protocol I are those which prohibit the use of weapons which cause superfluous injury or unnecessary suffering and those which are "of a nature to strike military objectives and civilians or civilian objects without distinction". Throughout the course of the short conflict in Lebanon, Israel engaged in widespread indiscriminate warfare through its use of cluster bombs and white phosphorous shells. The Israeli newspaper Haaretz recently quoted the head of an IDF rocket unit, who said that "[w]hat we did was insane and monstrous, we covered entire towns in cluster bombs". The majority of this weaponry was used in the final days of the conflict and the legacy of cluster bombs, an estimated 500,000 unexploded munitions, has resulted in the deaths of a dozen Lebanese citizens killed since the ceasefire came into effect.  

This recent conflict in Lebanon has confirmed the trend that civilians constitute the overwhelming majority of casualties in contemporary wars. It is estimated that at least 1,000 Lebanese civilians and around 40 Israeli civilians died over the course of the short conflict. The most notorious incident was the attack by the Israeli Air Force on a apartment building in the village of Qana in south Lebanon on 30th July 2006 in which around 60 civilians were killed; 34 of those killed were children.  

It is somewhat heartening to see that the recently created Human Rights Council has been proactive in addressing the violations of international law which have occurred in the conflict. A special session of the Council was convened on 11th August 2006 to address the situation and a resolution was adopting condemning the grave situation of human rights in Lebanon caused by Israeli military operations. The resolution did not refer to actions taken by Hezbollah and only urged all parties to respect the rules of international humanitarian law. Pursuant to this resolution, a high level commission of inquiry comprising four eminent experts on human rights and international humanitarian law was established on 1st September. Their mandate is to investigate the "systematic targeting and killings of civilians by Israel", to examine the types of weapons used by Israel and their conformity with international law and to assess the extent and "deadly impact" of Israeli attacks on human life, property, critical infrastructure and the environment in Lebanon. 

The resolution issued by the Human Rights Council is noteworthy for the emphasis it places on the human rights obligations of Israel, in addition to those which exist under international humanitarian law. It began by stating that "human rights law and international humanitarian law are complementary and mutually reinforcing" and condemned the Israeli military operations as "gross and systematic human rights violations of the Lebanese people". The Council considered that attacks and killings of innocent civilians and the destruction of houses, property and infrastructure are "a breach of the principles of the Charter of the United Nations, international law and international humanitarian law as well as are flagrant violations of human rights". A particular stress was placed on Israel's obligations under the Convention on the Rights of the Child. In emphasizing the importance of human rights law, the Council may have oversimplified the complex inter-relationship between human rights and humanitarian law and underestimated the pressing legal questions over the exact extent of Israel's human rights obligations in Lebanon.  

The Human Rights Council also reaffirmed the obligation of all States parties to the 1949 Geneva Conventions to take action against those persons who commit or order grave breaches of those treaties. A strong case can be made for the argument that members of the Israeli armed forces have committed war crimes in Lebanon. The Rome Statute of the International Criminal Court provides a detailed list of such crimes, all of which can be considered customary international law. But as the situation in the Occupied Palestinian Territories has demonstrated, the instances in which the signatories to the 1949 Geneva Conventions have fulfilled their obligation to prosecute those responsible for grave breaches are very few and far between. 

Slipping Standards Down Under

Australia’s dilution of its strong stance against the application of the death penalty overseas is worrying

 MAUREEN HARRIS

On 6 September 2006 the news emerged that four more members of the group of Australians convicted for heroin trafficking in Indonesia, known as the 'Bali Nine,' will face the death penalty. The sentences were handed down by the Supreme Court of Indonesia in response to appeals for lighter sentences from those previously imposed by the High Court. The new sentences follow those of two of the nine who were sentenced to death by firing squad in February 2006.  

The Australian government has stated that it will appeal for clemency on the sentences from the Indonesian government. However, Prime Minster John Howard warned that the appeals for clemency have 'limited chance for success' and stated that 'he had "no sympathy for drug traffickers and nor do millions of Australians".' 

In the Bali Nine case, as in others including in Vietnam and Indonesia, the Australian Federal Police provided assistance and information to the investigation, despite the fact that conviction was likely to attract the death penalty. The recent sentences have re-ignited ongoing concern about Australia's role in the investigations leading to the charges and subsequent sentences. This comes amid a wider debate surrounding criticism that Australia's policy on capital punishment is inconsistent and hypocritical, particularly as a state party to both the ICCPR and the Second Optional Protocol of the ICCPR, to which Australia acceded in 1990.  

Article 6 of the ICCPR guaranteeing the right to life has been interpreted by the Human Rights Committee in Judge v. Canada as including an obligation on abolitionist states not to expose a person to a 'real risk' of the application of the death penalty. In that case the removal of a person from an abolitionist state in circumstances where '…it may be reasonably anticipated that they will be sentenced to death [and] without ensuring that the death sentence would not be carried out' constituted a violation of Article 6. Following from this decision, the obligation to protect the right to life under Article 6 extends beyond the boundaries of a state to 'all circumstances.'  

Under the Protocol state parties must 'take all necessary measures to abolish the death penalty within [their] jurisdiction' and 'all parts of federal States without any limitations or exceptions.' In identifying the object and purpose of the Protocol, the Preamble lists the objective of '…undertak[ing]… an international commitment to abolish the death penalty.'  

Even though the object and purpose of the Protocol is clear, specific obligations with respect to 'international commitments' have not been explicitly laid down. Commission on Human Rights resolutions on the question of the death penalty, reiterate the Human Rights Committee principle of Judge v. Canada and repeatedly request states party to the ICCPR and Second Optional Protocol to refrain from extradition unless assurance is obtained that the death penalty will not be imposed. By extension this principle should encompass the provision of overseas police assistance and information where resulting charges are likely to attract the death penalty. In view of Australia's overseas police assistance practices it is apparent that 'international commitments' require clarification.  

Members of the Human Rights Committee and legal scholars have expressed the view that Article 6 of the ICCPR carries an obligation on abolitionist states not to reintroduce the death penalty. The Commission on Human Rights regularly calls on states 'not to extend application [of the death penalty] to crimes to which it does not at present apply.' The Special Rapporteur on extrajudicial, summary or arbitrary executions has said that reinstatements 'are in clear violation of the international trend towards abolishing the death penalty.' Because of the lack of a withdrawal mechanism, it has also been argued that the Protocol contains an implied obligation against reinstatement. Again, this issue may require clarification.  

The last execution held in Australia was in 1967. In 1973 the Commonwealth passed the Abolition of the Death Penalty Act (1973) which applies to Federal and territorial jurisdictions, and in 1987 the death penalty was completely abolished in all Australian jurisdictions.  

The Extradition Act 1988 (Cth) conforms with Australia's international obligations by placing a positive duty on the Attorney-General where extradition may result in the death penalty. The Act only allows extradition in such cases if an undertaking is obtained from the receiving state ensuring that the death penalty will not be imposed, or if imposed, carried out.  

The Mutual Assistance in Criminal Matters Act 1987 (Cth) applies to situations in which formal overseas requests for assistance in investigations are made requiring the use of coercive powers, such as the execution of a search warrant. Under the Act no positive duty is imposed to refuse assistance, but requests for assistance 'may' be refused if the Attorney-General believes that the provision of assistance could result in the death penalty. 

The Mutual Assistance Act does not cover police to police assistance in the conduct of investigations. According to the police to police assistance guidelines, the standard is twofold: where charges have been laid in relation to a crime attracting the death penalty, assistance may be provided but must be approved by the Minister for Justice and Customs. Where charges have not yet been laid, even if the nature of the crime is likely to attract the death penalty, police to police assistance 'can be provided without reference to the Minister until charges are laid.' This practice has been criticised in a Federal Court judgment which noted that the guidelines should be addressed. 

The AFP has provided assistance in relation to the Bali Nine and other Australians convicted for drug offences overseas, including Huu Trinh, who now faces death by firing squad in Vietnam. Similar assistance was provided in relation to the investigation surrounding the 2002 Bali bombings, leading to the convictions and death sentences imposed on the accused. The Australian government defended AFP involvement in the Bali Nine and Trinh cases by arguing that regional police co-operation is essential in the fight against drugs. 

Two treaties recently negotiated with the Malaysian government with respect to extradition procedures and mutual assistance requests led to claims that stronger standards are required to ensure adherence to Australia's international obligations in relation to the death penalty as they have been in previous treaties.  

In the extradition treaty, the possibility of facing the death penalty is not included as a category in which extradition must be refused. Instead, the treaty contains the requirement that no request for extradition in which the death penalty may be applied will take place without prior consultation and agreement between the parties. The mutual assistance treaty does not expressly address situations which may involve the death penalty, instead an explanatory note from Australia observes that the requirement that the treaty be conducted 'in conformity with… respective laws' includes the 'limitations on assistance set forth in… Australia's Mutual Assistance in Criminal Matters Act 1987… '.  

In the past Australia has taken a strong stand against the death penalty. In 2002 the Minister of Foreign Affairs Alexander Downer stated: 'the Australian Government is universally and consistently opposed to the use of capital punishment in any circumstances.' 

However, more recent statements have expressed support for capital punishment in certain cases. In relation to the sentencing of Bali bomber Amrozi, Prime Minister John Howard stated that the Australian government had no intention of making representations to the Indonesian Government that the death penalty not be carried out, and that the law of Indonesia should prevail. Both the Prime Minister and the Minster of Foreign Affairs stated that they would support the imposition of the death penalty for Osama Bin Laden. Similar statements followed the capture of Saddam Hussein with the Prime Minster and the then Opposition leader Mark Latham expressing public support for the death penalty if imposed.  

There have been several calls in recent years for referendums on re-establishing the death penalty in state jurisdictions. Additionally, following the trial of Amrozi, the Prime Minister called on states to debate reintroduction. There are currently no domestic measures preventing the reintroduction of the death penalty in the states. It has therefore been argued that adopting legislation preventing the reintroduction in the states is a 'necessary measure' obligated by the Second Optional Protocol.  

Australia has consistently signed UN resolutions calling for the abolition of the death penalty. According to Dr. Fullilove of the Lowy Institute for International Policy, the issue of universal abolition is not, however, 'accorded a high diplomatic priority' including in bilateral relations with other countries in the region. Australia takes steps towards the protection of its own citizens facing the death penalty overseas but as noted earlier this is not always accompanied by public statements universally condemning capital punishment, leading to calls of hypocrisy from other countries in the region. 

Even steps taken in relation to Australian citizens have been criticised on some occasions as too little, too late. It was argued in relation to appeals for clemency in the cases of the Bali Nine and Van Nyugen last December that there is little point in waiting until a death sentence is pronounced and then appealing for clemency, particularly where government agencies have been complicit in the apprehension of the criminals.  

In the current climate and in view of the loosening of protection for civil and political rights under Australia's anti-terrorism legislation (see “Counter-terrorism in the Australian vernacular”, Human Rights Features, 20 March 2006), this straying from a strong stance against the death penalty represents a worrying tendency. This is especially so as a state party to the Second Optional Protocol, one of the few in the region in which neighbouring states have some of the highest rates for capital punishment globally, and as a close ally of the US, with a similarly high rate of capital punishment.  

The obligations in terms of 'international commitments' under the Second Optional Protocol need to be clarified and the prohibition on re-introduction of capital punishment under the ICCPR and the Second Optional Protocol may require restatement. Changes to current Australian policy and police practice should be considered, including the provision of police-to-police assistance only if conditions are met, primary amongst those that the death penalty may not be imposed.