'Growing support in CTC for human rights experts'

BACRE WALY NDIAYE, who heads the Office of the High Commissioner for Human Rights in New York, believes there is scope for progress within the UN as far as the issue of human rights is concerned. He should know, having been a UN Special Rapporteur for extrajudicial executions, and having reported on the alarming situation in Rwanda months before the massacres began. In an interview to HUMAN RIGHTS FEATURES, Mr. Ndiaye spoke about the evolution of the Special Procedures system, the lessons learnt from Rwanda, the initiatives within the UN on having an alerting mechanism to prevent genocide, and significantly, about indications of support within the Counter Terrorism Committee (CTC) for the appointment of a human rights expert…

Human Rights Features (HRF): In view of the new role of the Security Council and the General Assembly in looking more closely at issues impacting on human rights, how do you see the role of the High Commissioner's Office in New York evolving?

Bacre Waly Ndiaye (BWN): When I joined this office in 1998, there was almost, in fact no link, between our office and the Security Council. I remember, in 1999, it was not very easy, even for the High Commissioner, then High Commissioner, Mrs. Robinson, to represent, to speak to the Council on behalf of the Secretary General on the subject of protection of civilians in armed conflict. It was only at the last minute that she was able to do it because some countries were opposing the High Commissioner for Human Rights addressing, formally, the Council. 

                And since then, I must say, the situation has evolved considerably. Our office in New York is briefing the panel of Security Council monthly. We are attending informal sessions and we have been asked to brief the Council more than once. Last time, [it] was on Central African countries, and the High Commissioner, not only Mrs. Robinson, but also Mr. [Sergio] Vieira de Mello and Mr. [Bertrand] Ramcharan have addressed the Council at some time, even on their request, like it was the case for the situation in Ituri last year. We still have a follow-up report to present to the Council. Many members of the Council are referring to the human rights aspect of the situation before them, and they are very well aware of the situation now. And since then also, all the peacekeeping operations, it has been decided, must have human rights components.

HRF: Given the greater role of UNDAF (UN Development Assistance Framework) and the increasing role of the UNDP and other agencies, how do you see your office in New York mainstreaming human rights components in the UNDP Country Programmes?

BWN: Well, we have been involved since 1998. First of all, the inclusion in the UNDAF of the six main human rights covenants, meaning the two Covenants (ICCPR and ICESCR), the Convention Against Discrimination, the Torture Convention, and the Child Convention and the one on women, and we should certainly add to these six covenants, the Migrant Workers Convention. So it is now part of the UNDAF. And about the CCA itself, it was the New York office also which was involved in introducing human rights indicators in the frame of the CCA. Since then, we have been contributing to reading and commenting on individual UNDAF countries and also we have been involved in the training of [resident representatives]. I myself attended two training sessions. We are regularly invited to the biannual [resident representative] meetings. We have also been involved in designing a training manual on human rights for regional coordinators.

HRF: Beyond the Common Country Assessments at the national level, one sees little evidence of synergies in UN agencies on human rights. How do you plan to streamline this?

BWN: An important feature of our synergy on human rights was the discussions we held, first in Princeton and last year in Stanford, about having a common understanding of what we mean by rights-based approach… to programming. This is one of the major issues in terms of mainstreaming human rights in all the UN activities. We were able, last year in Stanford, where I was also representing our office, to reach an agreement on what we mean by a rights-based approach, by policy, and I think that was very important. Some agencies have been playing a pioneering role, especially UNICEF, and some others were little bit behind, saying, we really don't see the need in our field for a rights-based approach. But, [we were] able to come, after these two meetings - and it was not easy - to a common understanding of what we mean by a rights-based approach and what will be the features, and all accepting that having a rights-based approach will make UN agencies or departments more effective, because the main features of course are based on participation, accountability, non-discrimination, transparency and also strong base on international human rights standards.

HRF: Cognisant of State sensitivities on terrorism and the debate surrounding it, yet aware of the negative human rights impact of the counter-terrorism campaign, in addition to the bi-monthly report of the OHCHR, what concrete measures can be envisaged: 1) within the existing framework? 2) through new instrumentalities such as a special rapporteur to study the impact of counter terrorism measures on human rights?

BWN: Because we are based in New York, I was the first one to brief on behalf of the High Commissioner the Counter Terrorism Committee (CTC) on the human rights aspects. Not only the CTC, but I also gave interviews - the first one to the Los Angeles Times - on the counter productive aspects of counter terrorism policy when it comes to protecting human rights. Also, we're very pleased to benefit from a very strong and sustained position by the Secretary General who has always said there will be no trade-off between our rights and our security. But concretely speaking, the office has been able to provide to the CTC some kind of guidelines which will check how counter terrorism policies will be compatible with protection of human rights. In addition, we have been suggesting having human rights experts within the CTC. I must say that up to now, we have not been successful, but at the last meeting of the CTC, last month, we realised that we are gaining support even within the Committee for the inclusion of human rights experts in the CTC Secretariat. So it is one way for us to ensure that policies to counter terrorism will not produce more human rights violations or even more support to terrorists.

HRF: You have been a Special Rapporteur yourself. Drawing from your own experiences, what are your thoughts on the resources available to the special procedures? In your understanding, what would have helped you carry out your job as Special Rapporteur better?

BWN: Well, I was Special Rapporteur, but from 1992 to 1998, and since then - even when I was there, and [I realise] even now, more now when I'm on the other side, in the Secretariat - the lack of resources for them has been one of the patterns for the mandates. On the one hand, you have an increase in requests for mandates - and there has been a significant development of mandates in the field of economic and social rights - and on the other hand, we have the same basket of resources available. Even at the level of our office, we realise that despite some increase, we are still [receiving] less than two percent of the UN general budget. This is very worrying because human rights is one of the pillars of the Charter, and unfortunately, governments do not seem to have their resources where they have their words. Everybody recognises the importance of protecting and promoting human rights, but when it comes to giving resources for human rights programmes, it is one of the most difficult and the most controversial of the discussions on the UN budget.

                I think this may be something we inherited from the past, but it is time to depart from it because there is increasing awareness of the need for a comprehensive approach to human security. Because development reforms, humanitarian aid and reconstruction, and peace and conflict resolution will not be sustainable without being inspired by human rights principles, and I believe that  this awareness is not reflected in the way UN is distributing its budget. At the other end, we are not willing to have a giant office of the High Commissioner of Human Rights, but we are trying to multiply the effect of our small resources by building stronger partnerships, specially with our sister agencies, like the members of the Executive Committee for Peace and Security, members of the Executive Committee on Humanitarian Affairs and the United Nations Development Group.

                For example, now we have regional advisers in all regional commissions, which is the way also to make sure that even if we are not able to cover everything, we have a presence in every region which will help at the regional level to take due account of not only a rights-based development, but also give due attention to human rights issues within the region.

HRF: As Special Rapporteur, you carried out a mission to Rwanda, which, as we know, failed to be taken seriously by the higher echelons of the UN. Do you think any lessons were learnt from experience? Do you, for example, listen to reports coming in from Sudan and have a sense of déjà vu?

BWN: I arrived in Rwanda on 6 April or 7 April 1993, just a year before the genocide. During my visit, I realised that there were indications that the massacres that had already occurred in Rwanda had been planned. And there was a kind of structure that played a role in the massacre which occurred, but was also capable of being involved in more massacres, maybe on a larger scale. It was with this decision in mind, I must say - and thanks to NGOs, when I undertook the visit, because they alerted me about the situation - my role was not to just confirm what I had seen but to see what was feasible to do to prevent these massacres from occurring. I realised that there was some indication that a genocide may be brewing, but I admit I did not foresee the scale, and in such a short framework, and also, I realised that it was not impossible to stop it.

                My recommendation was about measures to stop it, including making sure that there would be a national mechanism to alert about massacres, that the militias will be disbanded and disarmed, that the hate media would be silent, and also that the UN should be present in the country, even if in the form of civilian police. Unfortunately, I realise now, our reports were not available through the internet; there was no internet. The reports were printed and made available to those who were willing to request them. It was really a feeling of just throwing a bottle in the sea and to see who is going to grab it. At that time also, there was no link between the Rapporteur and the Secretariat in New York, let alone the Security Council. But now, there have been a number of changes. In particular, we have been able, from New York and with the help of our colleagues here, to organise a number of Arria Formula informal briefings by Special Rapporteurs for members of the Security Council. Now, this has become almost routine; whenever [the Rapporteurs] arrived or when they had come from a mission, and when they wanted, we made sure there was an invitation for an informal briefing by Rapporteurs to the Council. In addition, there is now also a proposal by the Secretary General to have a special rapporteur, or maybe a special advisor, on genocide who will liaise with the Security Council and recommend measures if he or she feels that a genocide may be brewing.

                I realise that it is difficult sometimes to characterise genocide before it happens; usually when you recognise it, it is already too late. The question is not to lock ourselves in the legal definition, but to realise that in all situations of mass human rights violation - because genocide cannot happen without preparation - usually, there will be some hate propaganda, which is one of the most important indicators, because you need to dehumanise the victim before you victimise him. And there will be also preparation in arming civilians, because usually there is not just the army, but also militias and civilians who are involved. You will also see other measures like very discriminatory laws; the fight against racial discrimination is therefore very important. I believe people have been traumatised by what happened in Rwanda; the trauma [will be a protection against] future genocides.

                Whether or not we are in a position to do it now, and I cannot say, but I believe that important steps have been taken, specially in terms of raising awareness within the UN system of the need for alerting mechanisms - we have some informal ones going on - but the decision to move from awareness to action is still difficult. Some years ago there was a proposal from the former Secretary General, Mr. Boutros Ghali, to have a kind of rapid deployment force; it has been 11 years now. In many cases like in Ituri last year, you had countries with a well-trained and a well-equipped army deciding to go, pending the deployment of a fully fledged peacekeeping operation. But it does not always happen, and that is the worry.         

But I believe that we will take the opportunity of the commemoration of the tenth anniversary of this terrible tragedy of Rwanda, to come up with some suggestions to make sure that another Rwanda will not happen.

GUANTANAMO BAY

'Time to stop choosing principles

"Thus we have reached a time for choosing. Over the next several weeks, we can choose either to take seriously the mandate we have been given and stand up for those around the world who yearn for liberty…or we can choose to find reasons for inaction or silence."

- Paula J. Dobriansky, US Department of State Under Secretary for Global Affairs.

IT is difficult to read these words of the US delegation at the High Level Segment of this year's Commission on Human Rights (CHR) without recollecting Guantanamo Bay, Cuba. Where, since January 2002, the US authorities have been transporting men allegedly seized in connection with hostilities, principally in Afghanistan. Some 660 detainees have been held for two years at the hands of the US authorities, most without charges, access to counsel or courts, or recourse to any legal process. The detention regime has been described by the English Court of Appeal as a "legal black hole". Even the International Committee of the Red Cross (ICRC) has broken its usual silence to condemn the Guantanamo policy.

Can the seemingly laudable sentiments of the US delegation have any credibility at the CHR, whilst the situation at Guantanamo remains?

Rasul v Bush

Later this month, the legal status of Guantanamo Bay is to be scrutinised by the US Supreme Court. In early 2002, lawyers on behalf of a small number of non-US nationals held at Guantanamo Bay filed petitions in the US courts seeking to challenge the legality of detention under President Bush's Executive Order of 13 November 2001, which authorised indefinite detention without due process. Three legal actions were brought in the District Court for the District of Columbia; the cases of Rasul v Bush, Al Odah v United States and Habib v Bush. The detainees in question are British, Australian and Kuwaiti nationals, all countries with friendly relations with the United States. The petitions were rejected by the District Court. On appeal, the Court of Appeals rejected the petitions, relying on a 1950 US Supreme Court ruling in the case of Johnson v Eisentrager, which it interpreted to mean that US courts do not technically have jurisdiction to consider the due process rights of foreign nationals detained outside the "sovereign territory" of the US.

Guantanamo Bay was leased from Cuba by the US in 1903. The lease provides that Cuba keeps "sovereignty" over the territory, but that the US authorities have "complete jurisdiction and control". As Guantanamo Bay is not sovereign territory under the terms of the Lease, the Court of Appeals ruled that it could not hear the petitions of any foreign nationals held at Guantanamo Bay. As all detainees at Guantanamo are foreign nationals, this means that to date none of the detainees has any legal rights before the US courts; or, indeed, before any other legal forum, as the US does not accept the jurisdiction of the Inter American Commission of Human Rights and has not ratified the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

The three sets of petitioners have appealed to the US Supreme Court, which is to hear their cases in a consolidated action under the title, Rasul v Bush. The US Supreme Court is asked to answer a very narrow question but with far-reaching implications for international human rights. The question is whether the US courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and detained at Guantanamo Bay.

Court briefs have now been lodged on behalf of the detainees and on behalf of the US Government. In addition, there are numerous amicus curiae briefs in support of the petitioners; the list of amici reads like a who's who of international human rights NGOs, as well as including the Association of the Bar of the City of New York, The Law Society of England and Wales, the International Bar Association, and former US diplomats.

Bush v Rest of the World

The US Government's case is exclusively centred on technical jurisdictional arguments arising from Eisentrager. Nowhere in the US Government's brief is there any reference to international human rights law. Thus, in the context of Guantanamo, the US Government has not chosen to "stand up" for the principles of the ICCPR - the mandate of the CHR. On the contrary, it is practicing the "inaction or silence" it so freely criticises in others.

There should be no doubt, however, as to the overwhelming weight of international legal authority against indefinite detention without independent legal review. Wherever detention may take place and in whatever circumstances, and whether it may be under international humanitarian law or international human rights law, detainees are entitled to the right to due process.

In the context of humanitarian law, the US continues to avoid its obligations under the 1949 Geneva Conventions. The Conventions require all detainees to be promptly classified, to allow detainees to be given the rights and privileges appropriate to their status (article 5, P.O.W. Convention). In any event and whatever their status, detainees are entitled to proper due process (see common article 3 and article 75, First Additional Protocol).

All the principal international and regional human rights instruments, including the ICCPR (Articles 9(1) and 9(4)), provide for legal review of detention before an independent tribunal without delay, usually in the form of the writ of habeas corpus or amparo.

The right to legal review of detention is non-derogable. It exists in time of peace, war, or states of emergency; including the so-called 'global war on terror', although no such concept is recognised in law. The right to habeas corpus or amparo has been upheld in such circumstances by the UN Human Rights Committee (General Comments 8/16, 1982 and 29/1950, 2001, and Vuolanne v Finland), the UN Working Group on Arbitrary Detention (UN Doc E/CN.4/2003/8 at 19-21), the UN Special Rapporteur on the independence of judges and lawyers (Dato' Param Cumaraswamy, March 2003), and regional human rights mechanisms (the European Court of Human Rights in Ocalan v Turkey, 2003, and the Inter-Am. C.H.R. Decision on Request for Precautionary Measures (Detainees at Guantanamo Bay), 2002).

The amicus curiae brief on behalf of the Commonwealth Lawyers Association concludes emphatically that indefinite detention without legal review is illegal in all Commonwealth countries. Moreover, the Restatement (Third) of the United States (para. 707, n.6 (1987)) recognises the right to legal review of detention as part of customary international law.

Thus, the situation at Guantanamo Bay constitutes a “deviance from world practice and opinion”; not least the practice of the United States itself.

Similarly, the practice of international and regional institutions leaves no doubt that the US courts should, under principles of international human rights law, have jurisdiction to review the detention of foreign nationals at Guantanamo Bay. As the International Bar Association submits in its amicus curiae brief, under international law the duty to respect the right against arbitrary detention applies when a state exercises "authority and control" over a person, regardless of where the detention occurs. This view is supported by the UN Human Rights Committee (Lopez Burgos v Uruguay and U.N. Doc. CCPR/C/74/CRP.4/Rev 4, para. 9, 3 Nov 2003), the European Court of Human Rights (see Cyprus v Turkey and Ocalan v Turkey), and the Inter-American Commission (see Coard v United States).

In sum, as the coalition of national and international NGOs put it in their amicus curiae brief: "International law does not allow the creation of an island outside of law where people are without rights."

Military commissions

Of over 700 detainees who have been held at Guantanamo over the last two years only six have so far been charged with any offence. The accused are to be tried before military commission, pursuant to President Bush's Military Order of 13 November 2001. Human Rights Watch, among many others, criticise the rules of the proposed commissions as President Bush, through his officials, will effectively act as "prosecutor, judge, jury". No appeal is permitted to a civilian court and the normal rules applying to lawyer-client relationships are to be seriously curtailed. In short, universally accepted standards of international law are to be ignored, denying the accused of basic human rights and fundamentally undermining the legitimacy of the commissions' verdicts.

Torture or Cruel, Inhuman or Degrading Treatment

It is clear from the accounts of those few detainees who have been released and from media reports that claims of torture or cruel, inhuman or degrading treatment will be brought against the US authorities. It is reported that many inmates are held in solitary confinement, restricted to 6' 8'' x 8' cells (approx. 2m x 2 ½ m) 24 hours per day, except for 30 minutes of exercise three times per week. Recently released detainees have reported guns held to their heads during questioning in Afghanistan by American soldiers, physical abuse and beatings. The ICRC has also expressed concern as to the psychological affects of indefinite detention. Thirty-four suicide attempts have been reported.

These kind of so called "stress and duress" techniques have been regularly condemned in US State Department annual reports. The pattern of treatment reported at Guantanamo constitutes a clear breach of the provisions of the Geneva Conventions and/or Article 7, ICCPR.

Implications for international human rights

The US Supreme Court in Rasul will focus solely on the issue of jurisdiction. However, the issue of jurisdiction permeates all others, because if the Supreme Court upholds the Court of Appeal ruling, then the US authorities will be subject to no legal restraints in their actions at Guantanamo. This would be unprecedented.

Guantanamo would be unique in being beyond the reach of both national law and international law. Whilst the Court's opinion would not be legally binding outside the United States, it would, as the International Bar Association have observed, tend to alienate America's human rights allies and show a green light to other countries wishing to act outside any effective legal scrutiny (see box below). 

'Time for choosing'

The practice of indefinite detention without trial or independent legal scrutiny, the imposition of military commissions, and the alleged ill treatment of detainees all serve to "stain" the United States' proud history as upholders and promoters of human rights and the rule of law.

In its last report to the HRC in 1994 (CCPR/C/81/Add.4) the US stated that: "the fundamental rights and freedoms protected by the Covenant are already guaranteed as a matter of U.S. law". In the shadow of Guantanamo, this claim - questioned by the HRC at the time - sounds increasingly hollow.

If the US is "serious" about the CHR's mandate to promote and protect the rights contained in the ICCPR for all individuals, then it is time for the US to stop choosing.

It is time for the US to stop choosing which human rights principles to apply where, when, and for whom. Instead, the US should lead the Commission and the international community by respecting the universal and inalienable rights contained in the international bill of rights, without discrimination, including the right to habeas corpus for foreign nationals held at Guantanamo Bay.

If the US Government will not do so, one can only hope that the US Supreme Court will choose to preserve the United States' hard-earned reputation as promoter and protector of international human rights. 

CUBA

903 reasons for a resolution on Cuba

SOMETIME in the coming weeks, the Commission on Human Rights (CHR) will once again take up the annual debate of whether or not to continue their support of a resolution condemning Cuba's human rights record.

During the discussion, opponents of the resolution will give numerous reasons as to why Cuba doesn't deserve this dubious distinction. They will point to Cuba's high literacy rate, their universal health care programme, and the increased participation of women in government. They will argue how, in the wake of an intensely unfair embargo, Cuba has achieved their goal of creating a paradise on earth.

But Cuba's defenders won't mention Enrique Copello Castillo. Last April, while the CHR met, Mr. Castillo and two friends attempted to leave this "paradise" by commandeering a ferry and setting sail for the United States. When they ran out of fuel, they were apprehended by the Cuban Coast Guard, brought back to Cuba, and executed as terrorists. The entire process took nine days. The trial's brevity and unfairness left them with little hope of defending themselves; but it did warn others who might seek to embarrass Castro through escape attempts from his "paradise."

They also won't talk about Raúl Rivero Castañeda. Mr. Castañeda, director of the Cuba Press, who wrote in 1999: "I am certain that informing others objectively and professionally and writing my opinions about the society in which I live cannot be a serious crime…" He was wrong. Last March, even as the CHR met to decide whether to re-elect Cuba as a member, Cuba rounded up more than 75 journalists, economists, doctors, pro-democracy leaders, and other activists for their "subversive activities." Mr. Castañeda's subversive activities consisted of speaking with foreign press agencies such as the Agence France Presse and the Reporters sans Frontières. Mr. Castañeda is serving a 20-year prison term for his "crime".

Officially, not much is known about Cuban prisons. Cuban officials, embarrassed by their conditions, have denied international human rights groups access to their prisons. However, dissidents' letters and essays which escape the Cuban censors describe a system of "inadequate medical care, poor food, and darkened cells where toilets are little more than holes in the ground".

Once imprisoned, non-violent dissidents such as Mr. Castañeda are mixed with hardened, violent crime inmates in maximum security facilities. Most dissidents suffer malnourishment and languish in overcrowded cells, where they endure repeated physical and sexual abuse, often with the full approval of their guards. They are required to attend regular "re-education" seminars for political indoctrination and are subject to solitary confinement for the mildest of offenses, such as refusing to wear a uniform. "The purpose is to make one surrender," says dissident leader Hector Palacios.

Lastly, you won't hear much about Jorge Brito. Mr. Brito is a psychiatric nurse at an HIV sanitarium outside Havana. Cuba's solution for people who suffer from the AIDS epidemic is to lock them up. All people found to be infected with HIV undergo mandatory detention. Once detained, they may leave only with the permission of the staff. Says Brito, "[t]he moment you are diagnosed, you are very vulnerable and feel a lot of fear…When you enter, you lose your privacy. You feel like a prisoner."

Although Cuba provides these people with medical coverage, many Cubans say that the necessary vitamins, antibiotics, and other drugs are unavailable or exorbitantly expensive. These measures are considered even more drastic considering the news that, despite these draconian efforts, AIDS rates in Cuba have continued to climb in the past few years.

Cuba should not be rewarded for its consistent disregard for the rights of its citizens. Significant advances in providing universal education and health care must never be justified when those advances come at the expense of the individual. The world must not reward social progress that tramples on individual rights and dissenting opinions.  Removal of the resolution from the Commission's agenda would send a message of implicit approval by the very world body specifically created to combat these evils.

Rather than reward Cuba for its behaviour by abandoning its resolution, the CHR needs to adopt stronger measures to ensure Cuba's compliance with international laws. As oppressive and unnecessary as the US blockade may be, it should not serve as a guise for Cuba's unrelenting repression of its people. Cuba's actions in the past year, coupled with its continued refusal to allow visits by the Personal Representative of the High Commissioner on Human Rights for Cuba, Christine Chanet, constitute grave violations of basic human rights principles.

The CHR has a responsibility to ensure that all human rights violations, regardless of where they occur, are categorically condemned. As a member of the CHR and the world community, Cuba has an obligation and a duty to comply with accepted human rights principles. Until now, the Commission's actions have consisted of little more than mildly worded reprimands.

The CHR’s continual reluctance to adopt a tougher stance on Cuba represents a grave obstacle in the struggle towards fortifying the legitimacy of the CHR and the worldwide human rights movement as a whole.

Last year, Cuba rounded up more than 100 advocates for democracy and condemned them to prison for their beliefs. Last year, 800 HIV-positive individuals were interned solely for the crime of being sick. Last year, three people seeking a life of freedom were executed. If the CHR needs a reason for a tougher stance to be taken against Cuba, it should ask one of these people.

Extrajudicial Executions

How about the duty to reply?