CHINESE CHEQUERS

China’s salvo against Item 9 has touched a chord among Asian Govts, but many have constituencies back home to answer to

IT must have been a difficult first week for Ambassador Mike Smith, the Chairperson of the 60th Session. It was also a rewarding week for him and others who sought to keep the agenda of the 60th session on track. On the very first day, the Chinese dragon stomped its feet and blew dragonfire across the assembly hall. Speaking on behalf of the Like Minded Group (LMG) it stated that country resolutions under Agenda item 9 had to go. Cuba rode shotgun in support and Nigeria also waded in.

The Chinese, not known to show their cards so early in the game, were clearly hoping that the fire, brimstone and bluster would rally the wavering troops amongst the Asian group. This is yet to be and will not be, if there is some meaningful and substantive dialogue between cooler heads in all the regional groupings.

Their appetites whetted by successes at the 59th session, with each of the African country mandates falling like ninepins, South Africa, Nigeria and Zimbabwe decided that it was time to move in for the kill at the 60th session. They hoped that through resolution 110, they could ask for a suspension of the discussion on agenda item 9 and subsequently move ECOSOC for a deletion of the agenda item altogether. The Cubans, congenital diplomats of resistance that they are, could smell opportunity. They hurried to carry the tidings to the Asian group, which they addressed in the first week of March. The Asians, with a few dishonourable exceptions, were not convinced by this maximalist game of brinkmanship. Many of them were not happy with what they saw as the selective use of country resolutions by the Western Group of countries. Sure, they said in private, China did not have a human rights rights record that would merit a mention in the dispatches, but why was the US struck with laryngitis when it came to Saudi Arabia. After all they are only too aware of how the Wahhabite kingdom treated Asian workers. Or France, which invariably lost its voice when human rights violations in Morocco, Algeria or Tunisia came up. Yet, many Asians have democratic constituencies to answer to at home. A jettisoning of agenda item 9 is not yet part of the Asian Group's roadmap.

The moderates in Asia know that an incremental dialogue is already showing effect. A case in point is the draft resolution on Nepal put in circulation by the Swiss. The Swiss, mindful of the sensitivities around agenda item 9, are proposing to move it under agenda item 19. The Swiss draft resolution itself is weak and is not going to satisfy civil society in Nepal or even the official Nepal National Human Rights Commission, which has taken a more forthright position on the abominable human rights situation in Nepal. The more astute among the Asian Governments know that the Swiss position is a minimalist one. Not supporting this will boomerang next year at the CHR or even at the General Assembly later this year in a stronger resolution from elsewhere. Even the Asians are aware that an absolutist monarch is no substitute for multiparty democracy in the Himalayan kingdom if democracy and human rights are to be preserved and the Maoists kept at bay.

The European Union also appears to have chosen to ignore the European Parliament recommendation on sponsoring or co-sponsoring a resolution on the killings of Muslims

the Indian state of Gujarat. North Korea has painted itself into a corner and has few friends even in Asia. No one is about to raise the issue of Aceh in Indonesia, and the move against China by the US is not going to fly. The more sensible Asians are aware that China is not doing itself a favour by the new aggressive posturing. Yet, historical experience has shown that it is best to allow China to be hoist on its petard.

NGOs are also aware that eternal vigilance is the price for space at the 60th session. Being kicked upstairs to the rarefied climes of the balcony during the high-level segment was indicative of how they are viewed in the Club of Nations United. The Norwegians will bring a feel-good resolution on human rights defenders. Yet, the draft does little to comfort defenders in the hurly burly of events, far away from the placid tranquility of the Norwegian fjords. Meanwhile, Egypt, India and Russia, soon to be followed by others, are starving frontline NGOs through draconian legislation on international funding for NGOs.

The Russians have already fired a salvo from Battleship Potemkin. All hands off Chechnya. We are fighting terrorism, and so what if some more innocents rather than Chechen hardliners get short shrift. The Americans with their blunderbuss strategy on counter-terrorism fail to see that the Mexican draft resolution actually gives them a sensible opportunity at course correction. It remains to be seen if the wisdom of the Aztecs will moderate the Bald Eagle. The battle against terrorism needs to be fought but it must be done so by democratic means. Ends and Means - does anyone remember that debate from a hoary past?

At the end of the week there was some comic relief for the uninitiated, with Palestine and Israel joined by India and Pakistan going at each other like Kilkenny cats. It is tragic that serious issues like Palestine and Kashmir and the larger debate on the right to self determination has been reduced to a theatre of the absurd.

The first day saw some brilliant diplomatic footwork by Ambassador Smith, who adopted the agenda before taking up resolution 110, Rev 1.  The Chinese, Cuban and African troika could only look on in stupefaction. On Friday, he again squelched efforts to reopen 110, Rev 1. A judicious use of the gavel has kept the hatches battened with the waters swirling below.

One down, five weeks to go. Advantage Ambassador Smith.

PARAM CUMARASWAMY

THE United Nations special procedure mechanism is a creature outside the UN Charter. It is not provided for in any of the UN treaties on human rights. Pursuant to the 1946 Convention on Privileges and Immunities of the UN and a couple of advisory opinions of the International Court of Justice, those appointed with mandates under this mechanism are classified as "experts on mission".

Since 1979 special mandates have been entrusted to these experts by exigencies of time to examine specific country situations or themes from a human rights perspective. To date there are no less than 45 such mandates. It is now acknowledged that this mechanism contributes to the UN early warning system to alert the international community to human rights violations. It is also acknowledged that the reports of these experts presented annually at the sessions of the UN Commission on Human Rights bring the inter-governmental debate on human rights closer to reality on the ground. These experts are often described as the 'eyes and ears' of the Commission.

Indeed paragraph 95 of the Vienna Declaration underlined the importance of preserving and strengthening the system of this mechanism and called upon the Commission to provide the experts with the necessary human and financial resources. It also asked all member States to "co-operate fully with these procedures and mechanism".

The experts are not paid any stipend for their services. All experts accept the mandate as an honour to serve the international community in the field of their expertise.

I have had the honour of serving the mandate on the independence of judges and lawyers since its creation in 1994 until 2003. During this period I intervened with governments in more than 100 countries and carried out in situ missions in some countries of every region including some developed countries.

Governments generally do not like these experts, particularly when the reports are critical of human rights situation in their countries. They find these experts intrusive. I drew the fury of the Government in my own country, Malaysia, where for five years I battled libel suits claiming to the tune of US$73 million against me before the Malaysian courts. The suits were in regard to a published interview I gave in my capacity as a Special Rapporteur to a London-based periodical, International Commercial Litigation, on improprieties in the Malaysian judiciary.

The Secretary General of the UN determined that I was entitled to immunity from legal process under the Convention for the impugned words. The Malaysian Government refused to accept that. Concerned international NGOs, jurist organisations and governments saw this not just as a harassment against me personally but a threat and intimidation to the entire thematic procedure of the UN human rights system. It became a dispute between the UN and the Government. Efforts by the Secretary General of the UN to resolve it diplomatically failed. The dispute was finally resolved by an Advisory Opinion of the International Court of Justice against the Malaysian Government. The Opinion delivered in April 1999 was sought by the Secretary General through ECOSOC.

What was most embarrassing (more for the Malaysian Government than for me) was that subsequent to the Advisory Opinion the Malaysian Government in a concerted move in Geneva actually attempted to prevent my being re-appointed in year 2000 to the mandate under the transitional provision in para. 7(ii) of the Commission Chairperson's statement of 28 April 1999 (E/1999/23-E/CN.4/1999/167 para. 55; E/CN.4/2000/120 and E/CN.4/2000/120).

Resulting from this saga, a point for discussion among some who were following the developments in my case was whether I was right in investigating my own country. In its Advisory Opinion, the International Court of Justice made no comment on this. However, subsequently in a letter dated 2 August 2000, the Secretary General of the UN advised the then Prime Minister of Malaysia and said that I, inter alia, "had received a universal mandate from the Commission on Human Rights to investigate such complaints wherever they arise. Malaysia was merely one of about 100 countries in which he intervened. The Special Rapporteur on the independence of judges and lawyers had a right and a duty to investigate Malaysia's judiciary in the course of the performance of his mission". The contents of this letter were brought to the attention of the Malaysian Court at the request of the Secretary General. I felt vindicated when the concerns I expressed in the interview more than six years earlier were confirmed by events in the country's judiciary.

Even the United States Government did not spare me over my public statement on the military commission and the denial of due process to detainees in Guantanamo Bay. Its delegation's statement during the 59th session last year on the Hungarian resolution on Independence and Impartiality of the Judiciary (L.48) was, I thought, most uncharacteristic of a developed nation like the United States which has a reputation, among other things, for monitoring human rights violations worldwide.

But the worst attack levelled against me was by the Government of Zimbabwe in a four-page scathing communication dated 27 September 2002 to the UN High Commissioner for Human Rights over my public statement on the arrest, detention and charges brought against retired Judge Blackie. I replied appropriately in writing. After all those attacks levelled against me, I was pleased to learn that on 30 June 2003, all the charges against Judge Blackie were withdrawn. Later, I was more pleased to learn that the Supreme Court Bench of Zimbabwe declared the arrest and earlier detention of Justice Paradza unconstitutional. I had publicly protested against the arrest and detention of Justice Paradza, and went public no less than nine times on the Zimbabwe situation simply because the Government failed to respond to my communications. The same Government had earlier resiled from an agreement to permit me to carry out an in situ mission.

About a year ago, a journalist asked me whether I had any disappointments in relation to my work over the past nine years. I replied that my one disappointment was that I was unable to prevent the murder of that courageous lawyer in Belfast, Rosemary Nelson. Since the first time I met her and heard about the threats she was subjected to, I knew she was at risk and could one day meet the same fate as Patrick Finucane in 1989, another fearless lawyer in Belfast. Every threat against her brought to my attention was relayed to the UK government immediately, urging protection for her. What I feared happened exactly 10 years after Patrick Finucane's murder.

One perennial frustration for experts under the special procedures system is the lack of resources from the OHCHR for the discharge of mandates. Once, an arranged mission of mine to South Africa had to be aborted because until the day of my scheduled departure for Johannesburg, I did not receive the travel ticket!

My mandate, particularly, required intensive research. I could not be seen going wrong in the assessment and evaluation of facts, and more particularly, in the analysis of the laws and constitutions of member States. It was not until the year 2000 that my mandate began to receive additional resources, both human and financial.

Another frustration in the system was the little time allocated to experts to present their reports at the annual Commission sessions. The worst scenario was the 58th session where the restriction imposed was so intolerable that some experts refused to be humiliated in that way. They merely told the session that they took it that their reports had been read. Subsequently, we expressed our frustrations at a press conference. There was improvement at the 59th session which provided for a few minutes for interactive debate after presentation of reports.

Yet another frustration was the failure of member States to comply with the recommendations of the experts given in their reports. There were also no effective procedures to follow-up on recommendations on the part of the experts. This, of course, was largely due to inadequate human resources at the Office of the High Commissioner. Member States who are unable to comply with any or all of the recommendations of the respective experts should be called upon by the Commission to explain in writing at the following Commission session.

Whatever may be the shortcomings in the system, and regardless of attacks and threats by States, the experts should not be deterred. They should be consoled by the thought that if a Government has expressed unhappiness over his or her report, then that must mean that he or she has discharged his or her mandate independently and honourably. In my experience, no Government, however liberal it may be, however supportive it may be of the special procedure mechanism, and however pleased it may be with the work of a particular expert, the same Government will not be happy if it is criticised publicly by the expert. Those are the realities the experts must live with in the discharge of their respective mandates. However, experts who tailor their reports according to the needs or dictates of Governments or NGOs will do a disservice to the cause of human rights protection.

In the last three or four years, there has been a gradual decline in the effectiveness of the Commission. Some States are seen seeking membership of the Commission and then using it as a shield to avoid Commission strictures against themselves for human rights violation in their States. The experts too could be more effective if there was greater co-operation and cohesion among them. While each mandate is personal to its holder, to be discharged independently and impartially, there are times when joint or collective statements of experts during Commission sessions, particularly on widespread violations in a particular country requiring scrutiny under several thematic mandates, could be effective to trigger the Commission into action. The Office of the High Commissioner could co-ordinate this procedure.

Member States of the Commission must be reminded that when the 171 States in 1993 adopted the Vienna Declaration and Programme of Action they solemnly pledged to respect human rights and fundamental freedoms and to undertake individually and collectively actions and programmes to make the enjoyment of human rights a reality for every human being. In paragraph 95 of the same Declaration, member States agreed to "co-operate fully" with the experts to realise the pledge undertaken.

Member States therefore should accept the concerns and recommendations expressed by these experts in their reports and other communications in good faith. These experts who have nothing to gain from the UN or from any other quarter, financial or otherwise, and have no hidden agendas against any particular government. Their only agenda is their commitment to the cause of human rights protection. Invariably it was for that commitment that they were and are appointed. While constructive government criticisms of findings in experts' reports are always healthy and welcome, personal attacks against these experts will be perceived by the international community, particularly the victims of human rights violations, as an attack on the very objectives the Commission was mandated to realise. The Commission should not be seen as undermining its very foundation.

Dato' Param Cumaraswamy was Special Rapporteur on the independence of judges and lawyers since the creation of the mandate in 1994 until 2003.

‘CHR work must not be undermined’

WHEN His Excellency JOSE RAMOS HORTA spoke to Human Rights Features last year, East Timor had been independent for a year, its institutions were being set up, and the country and its leaders were grappling with competing conceptions of justice and accountability. A year later, Mr. Horta revisits some of these issues, speaks of the constraints on his young nation, and urges the international community and the Commission on Human Rights not to attempt to undermine the gains made with respect to the promotion of human rights over the past 50 years… 

Rights Features (HRF): It has been reported that you are not in favour of pursuing the establishment of an international tribunal to address human rights abuses that occurred during Indonesia's rule. Do you not agree that successor governments of a State have a responsibility to own up to historical wrongs and seek to right them? Are you not contributing to a climate of impunity?

H.E. Jose Ramos Horta (JRH): In an ideal world, yes. An international tribunal to try individuals, whoever they may be, for war crimes and crimes against humanity is a logical indispensable tool to redress the wrongs done to the people. But we are not in an ideal world, we have to weight the pros and cons, consequences, implications for a decision to be made. In East Timor, we consider it an absolute priority the normalisation of relations with Indonesia in all aspects. At the same time, [we need to] consolidate our national institutions all of them still fragile, including the court system. The establishment of an international tribunal does not depend, in any case, only on the will of the East Timor side, but depends also on the will of the five permanent members of the Security Council and the ten non-permanent members. There is no guarantee that we will secure enough votes in the Security Council to have an international tribunal, or assuming we secure the vote for an international tribunal, there is no guarantee that we will get the funding necessary for a tribunal to function. And, at the same time, assuming we do get funding, there is no guarantee that the court will function, because there are no people to try because Indonesia will not cooperate.

            So what we have proposed to the United Nations and to different countries is [that] instead of an international tribunal, we would like to see an international truth panel established with some five eminent jurists, who would review the facts of the events of 1999 in East Timor, establish the facts, responsibilities, name names and then leave it to each individual country to take additional action, unilaterally on their own, if they deem [it] morally, politically necessary. I conclude my answer with this: a grave injustice was done to the people of East Timor by another country. This injustice was addressed by the international community in helping pave the way for East Timor's freedom and independence. This is the greatest act of justice of all. We are prepared to swallow the bitter pill that some of the worst elements responsible for the carnage and destruction of 1999 might never go to jail.

HRF: The US State Department report on human rights practices for 2003 sets out several cases of the use of torture in your country. Given East Timor's history, should there not be a complete abhorrence of torture?

JRH: I do not bother reading the State Department human rights reports. Who gave the legitimacy, the mandate to the US to monitor, to comment, to opinionate on the human rights situation around the world? Ironically, in their own report there is not one chapter on the US; maybe if they were to address their own messy internal human rights situation, it would require a whole volume on themselves. The US is not exactly the moral barometer of the world. If one country should be elected to be the monitor of the human rights situation around the world, I would prefer maybe Iceland, maybe Tasmania, not really the US. So I won't even comment on their very biased, politically motivated reporting on any country.

HRF: When do you intend to sign and ratify the Optional Protocol to CAT?

JRH: First let me say obviously that there is no torture in East Timor. Whoever has alleged that there is torture, I challenge them to prove it. It goes against our culture, our national legislation. There might have been reported abuses by police officers whenever they handle individual cases of law and order, but I have never heard of one single case of torture in my country. If you read it in the US State Department human rights report, I would advise for your own sanity to ignore it because I would say the State Department is not exactly the most credible source of reporting on any human rights situations around the world. My country might start issuing its own human rights report, starting with the human rights conditions in US jails, in Guantanamo, the behaviour of the Los Angeles, Chicago, New York police, the immigration authorities at JFK, at Los Angeles Airport the way they discriminate, they insult individuals from different countries that enter that country.

HRF: East Timor is a small country and could become the Costa Rica of Asia without a standing army and committed to human rights within itself and the region. Given your own background and that of your head of state, what proactive measures is East Timor going to take to take the moral high ground and act as a moral beacon in the region with respect to human rights?

JRH: We do not wish to be a model to anyone, it would be too pretentious. What we want to do is to be true to ourselves, to our history, to our own values, and that is why from day one, we began working on acceding to all the relevant international human rights treaties. And even though the reporting process is cumbersome, duplicating, wasteful, we are working hard with the OHCHR to streamline the reporting mechanism process and to fulfil all our obligations under the treaties.

            Our first obligation is to the people of East Timor. Working with the people, with civil society in order to create a truly democratic State where the rule of law prevails, and where there is a culture of respect, of tolerance toward everyone including different ethnic groups, different religions. Even though East Timor is 98 percent Catholic, we do have very small Protestant and Muslim communities which must be respected and cherished.

We are working hard with the NGO community, with the Commission on Human Rights, the thematic bodies, and the Special Rapporteurs to make sure they help us in fulfilling our obligations, to the people first and foremost, and to the international community. Will that make East Timor a model? Well, maybe. But we don't have such a pretentious ambition to be a model to anyone.

HRF: As you are the only Roman Catholic country in the region apart from the Philippines, given that the Vatican's pronouncements on the death penalty are clear, when do you propose to sign the Second Optional Protocol to the International Convention on Civil and Political Rights relating to the death penalty?

JRH: We intend to accede to every single instrument and protocol relating to human rights and to the humanitarian field. If we haven't done so, it is only because we have been independent for less than two years. We have acceded so far to more than to 20 international instruments, human rights instruments, and also to many relevant conventions related to non proliferation, to chemical and biological weapons, and so on. The Ministry of Foreign Affairs has a particular division called the Division of Treaties, Legal Affairs and Human Rights, staffed with three people. So, it is obvious that we cannot accede to all the international treaties within the first two years. We have done more than most countries that have been independent now for 50 years. More than the US, for instance, that they have such ambition to be the moral judge of the rest of the world. The US has not ratified the Convention on the Rights of the Child and many others.

HRF: It is reported that pre-trial detention is a problem in East Timor. As your judicial mechanisms are still finding their feet, do you propose to give your citizens an international remedy by signing the first optional protocol to the ICCPR?

JRH: We do acknowledge we have some serious deficiencies in our court system because of a  lack of judges, prosecutors, infrastructure, clerks and administration personnel. Because of that, yes there are numerous cases of individuals detained beyond what would be normally accepted. We have been trying, since the beginning of 2003, to declare 2003 the year of justice and public administration, whereby the Government puts special emphasis on correcting the deficiencies that we have.

            But there are no shortcuts. We cannot train lawyers and judges and prosecutors in a year or two. Neither Portugal nor Indonesia had put much effort in having a strong, independent judiciary. As I said earlier, if we have not acceded to the remaining relevant protocols is only because there is only enough time in a day for two or three people to do [what they can]. In that particular division that handles all the treaties there are, as I said, three people. Our obligation in the division is not only to satisfy the international community in terms of human rights and humanitarian obligations, but also we have bilateral agreements with many countries and multilateral agencies that we accede to. So we cannot paralyse everything just in order to [make time to] accede to human rights and humanitarian conventions and protocols. In due time, inshallah, God willing, with more resources, financial and human, we will accede to all the protocols.

            We have had good co-operation from the Office of the High Commissioner, [with the Office] seconding one or two individuals to advise us. We have two units in the country working with the office of the Prime Minister, one is a human rights unit, the other is a gender unit. Working in co-operation with the Foreign Ministry and the other government agencies, the Minister of justice, the police, and civil society, we have developed a national human rights action plan.  It has been drafted and approved and will make, I hope, a real impact on the protection and promotion of human rights. That includes combating child labour, combating human trafficking, although we have minor problems. One area in which we have a serious problem is domestic violence. It is widespread, and working with the UN, and also with the Church, we try to curtail this problem.

HRF: Now that you are a member of the Asian group in the Commission on Human Rights, what is East Timor's view on China's proposal to suspend consideration of agenda item 9 and subsequently go to ECOSOC for its deletion altogether? Wouldn't this mean the emasculation of human rights in the Commission? After all, the East Timor issue was kept alive because of agenda item 9.

JRH: I have not personally studied the Chinese proposal, but I would caution the international community, in general, not to undermine or curtail the competence of the Commission on Human Rights to hear [reports of] human rights situations around the world. If member countries undermine the work of the Commission, as it has been for many years now, the Commission will lose all its credibility and raison d'être and it would severely undermine the whole UN system.

            One of the greatest achievements of the last 50 years is in the field of promotion of human rights, with UN bodies like the Commission making themselves accessible to NGOs. We know from the examples of the last few years how increasingly important NGOs and civil society are in shaping world public opinion. Developing countries should be the very first ones to nurture relationships with civil society and NGOs, both NGOs in the South and in the North, because developing countries that are vulnerable to outside pressures, including from multinationals and financial institutions, do not have much of a defence or protection. And it has been the civil society and NGOs that have been forefront in the battle against the international trade barriers, against all the protectionist barriers that deny poor countries access to rich countries. Developing countries would be shooting themselves in the foot if we connive in undermining the NGOs. I can speak for myself as Foreign Minister of East Timor, and I will resist any attempt at setting back the tremendous gains the UN has made in the last 50 years.

HRF: Now that East Timor has freedom, what are your views on other oppressed nationalities in Indonesia, such as the Papuans, and the Acehnese?

JRH: I hesitate to offer comments or prescriptions for problems in each individual country. The human rights situation in Aceh particularly has been widely reported. The Indonesian side, fresh from the East Timor experience, probably should know that the use of force is not the best way to obtain the allegiance of people or to resolve a conflict. Therefore, I hope that Indonesia, or any country facing similar problems, would not give up peaceful means.

            But at the same time, the rebels, the insurgents, wherever they are, are not all angels. Sometimes, we tend to put all the blame on the government security forces and ignore human rights violations caused by insurgents themselves. I am far too familiar with many insurgents around the world, and I would not want to see them in power, because in their fight for their freedom they have already committed such gross abuses of human rights. Can you imagine what will they do when they have the whole state machinery in their hands? I am not naïve to simply make a blank negative judgment about one side or the other.

            The rebels in Aceh, like in many other countries, they themselves have to clean up their act if they want to take the moral high ground to argue with the government.