Iraq: Long road to justice

THE brutal and self-serving rule of Saddam Hussein is over, and today more Iraqis can express themselves without fear of arbitrary detention, torture, or execution. Most of the old regime's key players have been killed or captured. Electric power is now on more than it is off. Schools are being rebuilt and re-opened, and hospitals are receiving medical supplies. Oil production, responsible for 95 percent of government revenue, has been restored to close to pre-war levels, but remains below pre-1990 levels. At the provincial and local levels, the Iraqi people are choosing councils to discuss and resolve local issues. Baghdad alone has 88 such councils.

Human rights advocates that often deeply opposed the resort to force in Iraq also recognise the current prospects of justice for a regime that ruled Iraq with impunity. Iraqi civic associations and political parties are emerging and many new associations are organising around different human rights concerns, such as documenting cases of the "disappeared" or safeguarding and cataloguing documents of all the security agencies that were instruments of Ba'athist repression.

However, the Iraqi transition is now at a critical juncture, and there are significant reasons for concern about the framework for transitional justice that is being developed. The United States' failure to build a broad-based coalition for the war has resulted in many problems attributable to under-planned post-conflict operations, and inattention to human rights and humanitarian issues. Many of the costly errors described in this article could have been avoided - and further errors can be avoided in the future - through greater cooperation between the Coalition and the rest of the international community.

While there are many disagreements about the process so far, most commentators agree that for Iraq's transition to be considered a success, certain measures must be accomplished.

The most pressing concern is to ensure reliable physical security for the Iraqi population. Iraq has become a battleground for disaffected Iraqis and foreign extremists targeting US troops and Iraqi security forces. To accomplish a secure state, Iraq needs a better-trained police force, border police, and regular army.

There needs to be continued and sustained progress toward rebuilding Iraqi infrastructure. To date, the US has spent more than $20 billion and the rest of the world has pledged $14 billion. Estimates of the final costs range from $75 billion up to $200 billion over the next decade. Most estimates suggest Iraqi oil revenues will reach $10 billion per year in the coming years - indicating that the reconstruction will not be self-financed, thus requiring further aid from the international community.

There must be a real and complete transition to democratic governance from the Coalition Provisional Authority (CPA) to the interim government to a permanent, popularly elected government by December 2005. The UN should exercise independent authority to help in this transformation. Moreover, the Iraqi government and international community must provide accountability for crimes of the past regime and those committed during the invasion and occupation.

This article focuses on some of the human rights concerns relating to the reconstruction of the Iraqi criminal justice system and its public institutions.

Although the vast majority of crimes committed in Iraq occurred under the former regime, there have also been crimes committed by the Coalition that require accountability.

Several aspects of the Coalition's war conduct should be subjected to legal scrutiny. (see box) Human Rights Watch (HRW) conducted in situ investigations and analysis of civilian deaths during the war, and concluded that many civilian deaths resulted from practices that violate the principle of proportionality in international humanitarian law, including: the use of cluster munitions in population centres, air attacks on Iraqi senior leadership using a poor targeting strategy, and strikes on "dual use" facilities such as electrical and media installations.

The Coalition's poor planning for post-war Iraq has been especially problematic. Apparently, the Coalition thought they would be welcomed by Iraqis as liberators and only developed plans to administer Reconstruction and Humanitarian Assistance, assuming the political transition would take care of itself. This lack of foresight has been costly.

The Coalition failed to deploy sufficiently trained and equipped forces for post-conflict law enforcement responsibilities. The need for these forces was eminently foreseeable from recent transitional moments in other countries. The failure to equip policing soldiers with 'non-lethal' weapons such as rubber bullets and tear gas has resulted in civilian deaths that may violate humanitarian law proportionality requirements.

The inability to communicate in Arabic and lack of understanding of Iraqi culture has led to many serious affronts to personal dignity and worse, including civilian deaths. Poor planning has led to road checkpoints without signs in Arabic, and Patrol units without interpreters have resulted in numerous avoidable civilian deaths. More than 500 Iraqi civilians have been estimated killed since the end of major combat operations. The numbers are difficult to verify because the Coalition does not keep records of civilians they kill. Reportedly the Iraqi Interior Ministry has been keeping data, but it is does not appear to be publicly available yet.

Poor training for cultural differences has resulted in coalition raids on mosques - suspected to be used as hideouts or staging areas for attacks - which have fuelled local anger. As has the use of police dogs, considered by observant Muslims as sources of impurity, soldiers holding their boots to civilian's head (a deep affront), and male soldiers handling Iraqi women. Iraqis also claim US soldiers leave behind considerable material damage in their wake, breaking furniture and doors in their attempts to deal with the resistance. Iraqi newspapers continue to publish photographic evidence of such claims.

Under the CPA Order 1, Ba'ath party members occupying the top four ranks in government were removed from office and banned from future public sector employment. Candidates for employment in the top three layers of the new government are to be vetted for Ba'ath affiliation, and subject to investigation for prior criminal conduct. The International Centre for Transitional Justice has described the resemblance between the de-Ba'athification policy and the "lustration" policies adopted in several former Soviet states, where wide-scale dismissal and disqualification was based on party affiliation rather than individual records.

These laws may be permitted in the context of a military occupation if justified by military necessity or the duty to maintain public order, but if maintained in a sovereign Iraqi state they would violate international human rights norms. They should be replaced by an individualised vetting process by the future sovereign Iraqi government in order to avoid violations of ICCPR Article 19 (freedom of expression), ICCPR Article 25 (right to hold public office without discrimination), and ICESCR Article 2 (non-discrimination in the choice of work). Perhaps the best accommodation of security needs and individual rights would be a two phase de-Ba'athification process: an initial removal of all Ba'ath party members from public office, followed by permissive return to office in the absence of criminal conduct in the individual case. No matter the chosen approach, the long-term process must be based on individual culpability allowing for fundamental due process. CPA Order 14, prohibiting publication or broadcast of pro-Ba'ath statements, poses a similar problem. ICCPR Article 19(3) only allows censorship to be justified on public order or national security grounds, and only the most expansive interpretation of those terms would permit the sweeping effect of CPA Order 14. 

A firm foundation for human rights?

The interim Constitution requires that the interim government is constituted through a process of extensive deliberations and consultations, with a cross-section of the Iraqi people conducted by the IGC and CPA, and possibly in consultation with the UN. No method of conducting 'extensive deliberations' is discussed,

and, based on the track record of insularity, there is no reason to think the IGC and CPA will start havingserious, meaningful interaction with Iraqi civil society. The legislative authority of the interim government should be limited to the powers given an occupying force. The interim government will be selected by the CPA and IGC, which derive their authority from humanitarian law; which in turn only provides for a limited legislative authority for the occupying power.

However, the interim Constitution does not provide any limits on what the interim government can decide.

The fundamental difference between the legislative powers of a military occupant and a sovereign state with respect to the protection of human rights is not just an academic exercise.

The transition in Iraq will be fundamentally flawed if CPA legislation that violates human rights law is maintained after the transfer of power. The Law of Administration for the State of Iraq for the Transitional Period (Temporary Administrative Law or interim Constitution) article 26(C) provides that CPA legislation will remain in force until rescinded or amended by a sovereign Iraqi government.

The new Iraqi government should be required to conduct a thorough review of all CPA legislation to determine its legality under international human rights law outside the context of a military occupation.

Almost a year on from the fall of the Ba'athist regime, there is much still to be done if justice and hope is to be restored to the people of Iraq.

CENTRAL ASIA

Tajikistan: A precarious balance

RIGHT TO DEVELOPMENT

When the poor are left behind

IN 1995, the Government of Egypt noted in the introduction to its National Report to the World Summit on Social Development: "Social development with all its economic, cultural and political aspects takes precedence in Egypt over other concerns and is given top priority owing to numerous important factors. Since the Declaration on the Right to Development, development has become a universal, inalienable and integral human right. In fact, it is the only option for developing countries including Egypt to overcome problems caused by decline in economic growth rates. It is also the best solution to eliminate core social issues, namely ignorance, poverty, disease and their consequences. Therefore, social development has become the only legitimate cause to adopt in order to achieve progress and prosperity for the future". But, do the facts on the ground bear out Egypt’s claim? The short answer is no.

The right to development includes three components: (1) the expansion of all human rights; (2) participation and accountability in development policy; and (3) the absence of trade-offs between rights. The progressive realisation of rights is assessed in light of existing resources and the capacities of governments. Thus, a poor country does not fulfil the right to development not because it is poor per se but if, given existing resources, a higher level of enjoyment of human rights could have been achieved with an alternative policy without sacrificing any rights. In other words, the right to development approach calls for governments to judge the outcome of development policy in terms of human development rather than strictly in terms of economic growth.

After years of slow growth between 1987 and 1995, the Egyptian economy rebounded in the late 90s. It is in this context of higher economic growth that we analyse the performance of Egypt on the right to development. The first task is to question human development indicators. It is important to scrutinise aggregate indicators on performance for misreporting and discrepancies. For example the fact that, in 2001, according to UNDP's Egypt Human Development Report 2003, 100 percent of the urban population and 99 percent of the rural population is held to be covered by healthcare services is highly questionable. But we also have to look more closely at indicators of trends at the local and regional levels in order to assess the right to development.

First, it is clear that poverty declined as a whole in the second half of the 1990s. Overall indicators of performance in reducing poverty may however hide important regional and sectoral differences. It is on those differences in the prevalence of poverty that we should focus our attention. El-Laithy, Lokshin, and Banerji (2003), in a World Bank working paper, show that, according to a variety of poverty measures, most of the poor are concentrated in Upper Egypt - a disproportionate amount considering the population of the region. The lowest level of poverty is found in urban areas, and especially the Metropolitan area. While the Lower region experienced both an increase in expenditures and a reduction of inequality, the Upper region, in the period 1995-2000, was marked by a drop in per capita expenditure and a worsening of inequality. In the Metropolitan region rising per capita expenditures reduced poverty but failed to reduce inequality. Overall, the authors conclude, decreasing poverty in the Lower and Metropolitan regions masks increasing deprivation in Upper Egypt.

These findings are consistent with the result of surveys conducted in 1997 and 1999 by the International Food Policy Research Institute (2002) that showed declining household consumption, especially in rural Upper Egypt. The findings are corroborated by the 2002 Poverty Reduction in Egypt report co-authored by the World Bank and the Ministry of Planning. The report also notes that the urban-rural gap in indoor access to drinking water and a widening gap in access to sewage systems driven mainly by widening gaps in Upper Egypt.

Has the poverty reduction strategy of the government been adequate? First, it is important to note that the prevalence of poverty in every region is affected by the reliance of the poorest on government employment. Richard Adams (2002), a researcher at the World Bank, shows that, in rural areas, non-farm income, of which government employment is the largest part, is the central factor in reducing inequality. In its 1997 Country Assistance Strategy for the Arab Republic of Egypt, the World Bank already noted (as did a previous World Bank working paper of 1985) that the primary social safety net had been government employment. However, as Adams notes, this policy has limits when public services are already overextended and the budget deficit enlarges. In those circumstances Adams advises that Egypt put more emphasis on unskilled labour in order to improve the well-being of the poorest rural households and decrease poverty. In the end, the literature indicates that Egypt's policy for reducing poverty is unsustainable and that soon the country could face a major social crisis. 

In addition, poverty levels, as calculated by the authors are positively affected by child labour. Since the various authors do not measure the attainment of rights directly but instead rely on money income or expenditures, the wages brought home by children working in agriculture actually improves the picture on poverty. Human Rights Watch (2001; HRW) points to the continuing use of over one million children between ages 7 and 12 in agricultural cooperatives, and documents especially their role in cotton pest management. Despite adopting the Child Law in 1996, the Government of Egypt has not taken effective measures to enforce it in agricultural cooperatives. HRW notes that children employed in removing cotton egg worms are frequently subjected to maltreatment and exposure to toxic pesticides. This state of affairs is even more deplorable when we consider the fact that agricultural cooperatives are effectively under the control of the State and managed by public servants.

Furthermore, World Bank's Egypt Structural and Social Review (2001) notes: "In general, health and education indicators present a mixed picture of the quality of life in Egypt compared to other low income countries". For example, in 2001, the literacy rate in Egypt was 56.1 percent as opposed to an average of 85.7 percent for other middle income countries. It is important to note, however, that both health and education expenditures have risen as a share of GDP throughout the 1990s. And aggregate health indicators show steadfast improvement from 1990 to 2001. But, Ahmed Gamal (2003) of the Egyptian Center of Economic Studies argues that increasing per capita expenditures and improved access hide disparities in provision, poor quality of service and inefficiencies in reaching the poor. First, health expenditures as a percentage of GDP do not compare well with other countries at similar levels of development - in 2000, 3.8 percent of Egypt's GDP went to healthcare against 5.3 percent countries with similar income. Moreover, health expenditures are, according to the World Bank, skewed toward expensive curative diseases services rather than communicative diseases that predominately affect the poor. Second, overall increases in health expenditures are affected by the increasing proportion of private provision and private financing of healthcare. The effect of greater reliance of the private sector in health threatens access of the poor to quality healthcare.

This assessment is corroborated by the detailed analysis of Rannan-Eliya, Blanco-Vidal and Nandakamar (2000) who note in their USAID sponsored Partnership for Health Reform working paper: "Overall, the distribution of combined health expenditures favours the higher income groups. This is a consequence of a distribution of private health expenditures which is skewed towards the highest income groups, and a distribution of public health expenditures which moderately favours the higher income groups." Moreover, they show that the geographical allocation of health expenditures also largely favours richer regions. Finally, they note that health expenditures consistently exhibit male-bias, in large part due to imbalances arising out of the Health Insurance Organisation which is restricted to the urban formal sector workforce that pays a contribution - it is also partly financed by public expenditures. These inequities are inconsistent with the right to development.

For both health and education expenditures, Gamal and World Bank reports concur that there is also a clear lack of efficiency. Evidence of the high teaching to non-teaching staff ratio and the low occupancy rate of hospital beds point in the same direction: an overemphasis on overheads in education, and investment in healthcare, indicating an increase in public expenditures has no effect on reducing poverty in Egypt. Higher public expenditures should now go into increasing quality to have any effect in increasing the well-being of the poorest.

In this context, it is not surprising that the World Bank notes: "Allocation of public expenditures on health and education could be improved to increase delivery to low income groups and reduce regional variation."

While the Government of Egypt was so intent on investing in large hospitals it neglected more crucial investments in reducing poverty. Although Egypt has avoided outright privatisation of water services, it has allowed private distribution in the many marginalised urban areas which are not covered by the public system. Alexandria University's Samia Gala Saad (2003) notes that water sold by private vendors is ten times more expensive than public water and often of poor quality. He further notes that women are particularly affected by the problem since they manage most household tasks. The poor quality of water also poses serious threats to health, particularly of children.

The UNDP's Egypt Human Development Report 2003 highlights innovative practices in terms of participation adopted by the Egyptian government. In particular, it is worth noting the achievements of the Integrated Rural Development Program (Shorouk), which since its inception in 1994, has put to the fore grassroots participation in the design, implementation, and monitoring of development programs. However, those initiatives suffer from lack of training of administrative staff, lack of funding, and diversion of resources by powerful individuals. Moreover, it is unclear how accountable the government can be when, as noted by the World Bank (2001), its budgeting process is organised in such a way that it is impossible to prioritise, budget transparency is limited at all stages, and the budget is not related to outcomes.

In other words, participation has been introduced at the margins while government accountability on development policy is limited. With a relatively weak civil society and a political party system dependent on the State, Egypt has a long way to go to satisfy the criteria of participation and accountability with respect to the right to development. In spite of its professed commitment to the right to development, the record of Egypt is disappointing, for several reasons. First, poverty has worsened in the Upper region in spite of increased economic growth at the national level.

Two, income poverty is artificially alleviated by substantial and unsustainable government employment, thereby questioning the capacity of the government to fight poverty presently and in the future, and by child labour in agriculture.

Third, the provision of education and healthcare is unequally shared along income, regional, and gender lines, and is being weakened from an already low point of efficiency.

Finally, participation will not be meaningful until the government improves budget transparency and creates the conditions for a vibrant and informed civil society.

RIGHT TO DEVELOPMENT

Rights approach: ‘Duty bearer is the key’

The Independent Expert on the right to development, ARJUN SENGUPTA, speaks to HUMAN RIGHTS FEATURES… 

Human Rights Features (HRF): A main concern has been with the notions of equity and social justice… I am not too sure where it stands in the report.

Arjun Sengupta (AS): I think the issues of equity and social justice are at the core of human rights. If somebody asks me what is the principal message of a human rights approach to any activity, [it] is that it talks about equity and social justice. And that is the fundamental point. So when we talk about the human rights-based [approach], or human rights in development, what we really mean is a process of development that guarantees equity and justice. And this is the basis from which we start. (…)You have to have the standard of human rights based on equity, based on participation, accountability, and non-discrimination, which are all elements of the package. This is a very central part of the whole [issue].

HRF: But how far do you bring equality in and notions of distributive justice?

AS: Now as economists, we do not talk about equality in the sense of equal income… that is the result. It's basically equality of opportunity. And this is… now… in terms of the language of Sen - that Amartya Sen has introduced. It is capability. Every individual must have equal opportunity to build up capability, to build up the freedom to choose. Capability is nothing but the freedom to choose. And that is where equality comes in. Equality of what? Equality of opportunity.

HRF: So, does that mean there is no right to redistributive policy? In terms of the analysis of social policy, where does the right to development make a difference?

AS: I am glad that you mention that. The rights are to be obtained… objective. Those are the things we want to do. Policies are instruments. You have a right to certain advantages, certain privileges, certain freedoms, and that is the essential approach to a rights-based development. Development is seen as fulfilling certain freedoms, certain privileges, certain special powers given to people. This is, in Sen's language, capability. Obligation is part of that. The obligation part is a development policy. The policies are obligations. You don't make policies as a right. Policies follow from the fulfillment of right. Now, the right to development implies a policy of development where distributive justice is an essential condition. You cannot have a fulfillment of human rights if the policy is not based on principles of distributive justice.

HRF: Another issue of concern - when you mention the responsibility of the international community. Then we look at the international financial institutions. And in the World Bank and the IMF, it is not about the international community, it is about the donors. Those who have a say on the decisions in those institutions are those that provide money. Is there a difference between calling on the international community to uphold the right to development and calling on donors?

AS: Donors would be part of the international community. The whole notion of the rights approach is that there are duty bearers…and the duty bearers who have obligations to have the right kind of development policy. Among the duty bearers, there are different kinds. Some duty bearers are directly involved. Some duty bearers can actually form policies, like states, within the restrictions in which the individual lives. But there are some duty bearers - those we call the international community - whose actions, whose policies, have an enormous impact. Among the duty bearers there are different [kinds] - IMF, World Bank and others are members of the international community whose policies have a tremendous impact on individual developing countries. But also multinationals,  they have also a major role in this. Donor countries directly or donor countries through the IMF and the World Bank…that is a category of agents. So, we have to identify the duty-bearer according to the duty and according to the policy that they should follow.

So when we talk about the international community, we talk about the whole gamut, all the different agents, of which some agents are more important, not because they are more important than any other philosophically, but because their actions have more impact. In our developing countries framework, particularly those who are not dependent on the IMF-World Bank, maybe international investors are much more important because foreign investment now has become a major source of growth… (…)

(The State) is the primary duty bearer because it formulates laws, it formulates policies. But the others are equally, and sometimes quite much more than the state, responsible. Because the state does not have the autonomy [any longer]. Say, in the matter of trade, it is the international regime which is much more important than the individual countries.

HRF: There is the argument that the South was underdeveloped by the North. So now there is an obligation upon the North to compensate for the underdevelopment of the South.

AS: I do not say that. Because that is too simplistic, unidirectional. The world is complex. I mean it is true that there are histories - many countries in the South were exploited. But that is not the full story. These countries themselves had governments that, at the sources of power, were responsible for violations of human rights. To say that is only unidirectional, it is not capturing the whole thing.

What is more important is when you are actually trying to change you must know who should play what role. I am not interested in identifying who has done what in the past. I am interested in doing that today… (…)

What Britain did in the past is important, but let us leave that to historians. I am interested in what can be done today. Today Britain is important, the World Bank is important, the IMF is important.

HRF: But one could make an estimate that, say, there are a billion people in India, and multiply that by a number representing the harm for each people. So Britain owes billions to India…

AS: How does it help? Finger pointing is good when you want to get something but Britain does not have the capacity to pay even one tenth of [the] sum. I mean it is a poor country now compared to others. Whatever they did two hundred years ago… for example in India this is a major problem - when Hindu temples where destroyed by the Muslim invaders who built mosques. Some now try to destroy their mosques. Now the fundamental issue is that the character that did destroy the temple died two hundred years ago. They have nothing to do with people that do the work now. This does not appeal to me. Much more important, we should be able to see how it can be done. My approach is… I want to solve the problem. (…).

            Philosophy is useful when the concepts are not clear. But I want to solve the problem. And, in solving the problem sometimes finger pointing helps. Finger pointing not only from outside, for example, on gender equity, women's rights, but finger pointing should also be done to our domestic mafias… they have created all kinds of problems. That kind of help but this is only to mobilise. This morning in a meeting I was asked: in six years has there been any change in the US government and the international community? There are some changes. But I do not know [what] the changes are for … but I have found that people have become more respectful of human rights. When Argentina was cast aside… [the] IMF and World Bank [said], we cannot do anything, because our mandate does not permit. But today nobody would have the courage to say, when something is happening in Bosnia, I don't do anything.

HRF: But, still the World Bank and the IMF maintain that their mandate does not include the promotion of human rights…

AS: It is true that they say that. But I have taken a position on this. I am, say, in India, and I form a club and this club does not abide to it in their articles. I am bound by the general duty. But I belong to this club… the club does not abide by that so I don't abide by that. What kind of principle is that? Members of the international community have signed international treaties. They abide by that. All members of the IMF and the World Bank are conventionally bound too. If they are not marketed this way it is because of our failure. We have not been able build up sufficient pressure. (…) It is [] their members who must realise they have to work differently.

            And that is taking place. I mean, when I was on the board of the IMF and when I first talked about poverty, they said, what are you talking about? IMF is about the balance of payment. Poverty… this is not our business. This is not in our mandate. They don't say that now. They talk of poverty reduction strategies. Now they have realised that if they don't do that, they make themselves redundant. And their governments also find that they cannot do this. This is the way. And we have to work with them.

HRF: On the issue of debt… Do countries have a right to default? They are in a dire situation and they need to default. But the international community would not allow them in order to preserve the international system. Should Argentina be allowed to default?

AS: I would put it in a slightly different way. You do not have a right to default. But, if making debt repayments causes severe reduction in human rights…. then you have every obligation to see that human rights are respected. As a result of that, you have to ask to reschedule the debt… you have the legitimacy to ask for that. And the international community will reschedule the debt because the international community has an obligation to help me not violate human rights.

HRF: On the issue of categorical inequalities, inequalities between groups which are mentioned in your report. If there is a group that owns most of the land, and the vast majority is wage labour or is landless. How do I go about doing my land reform? And that land is owned by a handful of people who belong to a particular ethnic, racial or cultural group…

AS: That is an interesting question… when two rights can conflict. The first thing if there is land misdistribution, it means a large number of people are deprived of land and the consequence of that is widespread poverty. And now you have a very intelligently brought another point… that in order to do that you are attacking a particular minority of property holders of a particular ethnic group.

            Then, the question is that there are two rights which can be conflicting. This is the kind of thing that human rights law will tell you how to solve. It gives methods on how to take care of the problem for those rights which are being violated. Because if they are wrong… for example, if I don't create this land distribution, I leave a large number of people deprived, we have to do something. But at the same time, we have to create alternatives so that those basic rights are not violated.

HRF: But if there is really no way I am going to give up my land… Let's put the case of large development projects, for example, dams. And… an indigenous community wants to  preserve its culture. And you want to take away their land. You are going to break their culture anyway. Because they don't want to move. On the other hand, you have the social welfare of millions…

AS: The only answer to that is that you have to persuade them. If it is the case that a large number of people are going to be displaced… In the case of dams it is a very good example. If as a result of creating a dam large number of people benefit, we imagine, large number of people benefit from water, irrigation. And, if it does not do irreparable damage. But you must take into account what is happening to those being evicted. But the only way is to persuade them… sometimes legal action. It happened in Canada. Even in Calcutta, there was an underground railway that was stopped for one and a half year[s]. It had to go through a property where a man had [his] ancestors buried and he said: I am not giving it up! So he went to the court. I have this fundamental right… my family, my property, my memory… and the court decided against it…

            You cannot make you[r] right more important than the right of the other people. This is the major problem with human rights. We do not accept trade-offs but sometimes there are issues…. And there are many things to do. But, you cannot violate other people's rights.

HRF: The right to development has three components: the expansion of rights, no trade-offs, and there is participation. I was surprised that you have not written so much about participation and especially participatory mechanisms. Should we promote participation and participatory mechanisms?

AS: Absolutely… This is an essential element of any development policy. It has to be participatory and accountable. I mean… not participatory in the sense that we are getting together but participatory where there are mechanisms by which my view is important. I couldn't go beyond principles… But again, Argentina is a very good example where they have done that.

MEDIA FREEDOM

‘Education has become a traded service’

KATARINA TOMASEVSKI is Professor of International Law and International Relations at Lund University, Sweden, and founder of the Right to Education Project (www.right-to-education.org). She has also completed her term as Special Rapporteur on the Right to Education, and is the first Rapporteur in the history of the UN human rights special mechanisms to request that the mandate not be renewed. Here, she discusses in detail the limitations of the mandate, the reasoning behind her decision, and her relationship with the OHCHR... 

Human Rights Features (HRF): Starting on a general note, you have stated that the right to education is a right threatened with disappearance. Referring to the obligations of Article 14 of the ICESCR (requiring that detailed plans of action be undertaken by states to ensure the progressive implementation of compulsory free education), does it strike you that this right is amongst the most neglected in international human rights law?

Katarina Tomasevski (KT): Yes, indeed you are right. When the Committee on Economic, Social and Cultural Rights was drafting its general comment on the right to education, it had to conclude that it had received not a single one of detailed plans of action, although almost half the countries reporting to the Committee had to acknowledge that education was neither free, nor compulsory, nor all-encompassing. So indeed, the right to education is neglected and there are too many reasons for this.

            The first reason for this is [that] requiring governments to adopt detailed plans of action to put primary education into practice without providing them with any assistance is simply not a feasible proposal. So the reason why there are no plans of action is that the government would have to invest its resources to create a plan of action which would remain unfunded. There are plans of action, not for the right to education but for the accomplishment of primary education under poverty reduction strategy papers, which means institutions which do not follow the right to education approach, such as the World Bank and International Monetary Fund, get from heavily indebted countries their poverty reduction strategy papers which have to include allocation for primary education and primary health care. But this is not the right place. There is no guarantee that education should be free; if it is not free then it can't be compulsory, and if it is neither free nor compulsory, it is not all-encompassing. So what happens is that we get most action and funding for education completely outside United Nations human rights bodies.

HRF: Turning to your report, throughout you emphasise the increasing status of education as a traded service, and the consequent need for a human rights curriculum for economists. How do you see such a development unfolding?

KT: It was for me a shocking discovery that around the Commission on Human Rights there is no knowledge nor open acknowledgment of the fact that education has become a traded service, and that 45 countries in the world, including countries which ideologically pursue the right to education, such as the People's Republic of China, have opened their entire education system, from pre-primary to university, to complete privatisation.

            This means that what we have quite often at the Commission are exercises in empty rhetoric, if not worse, in hypocrisy, with government delegations reciting the right to education rhetoric but in practice, in their own law, education has been completely converted in to traded service, which means that there is no right, that only people with adequate purchasing power can buy education for themselves and for their children, but poor people simply can't get any access to education. And this term 'access' is particularly important because that's the other side of the coin at the Commission, which is the changing language in all resolutions on economic, social and cultural rights, where particularly the delegation of the United States is always suggesting the same linguistic option not to talk about the right to education but about access to education because that covers both purchased education and education as an individual entitlement.

            Furthermore, there is no concerted opposition by human rights groups. These negotiations and resolutions are not subject to public scrutiny which means that the Commission adopts resolutions that are subsequently every year less and less favourable to economic, social and cultural rights without any public critique addressed to the Commission, which is the human rights Commission. But there is yet another factor which should be emphasised, which is that developing countries which sometimes follow the rhetoric of economic, social, and cultural rights are actually much more supportive of the right to development, because they can define the right to development as the right of the state, and claim that the government of Pakistan or the government of China is entitled to aid from the international community because it is a poor country. If we look at the way China is using its budget, there is an immensely visible priority for military expenditure at the expense of allocation for education. That China took pride in launching their first man into space, which cost billions, but it still will not ensure primary education for all its children. So there are very many layers of what happens within the Commission and then what we get from the Commission's output.

HRF: You cite that the "global consensus on the need for all children to complete primary education prioritises education as a free public service, but refers only to the first phase of schooling, thereby implicitly negating the right to secondary and university education". Could you elaborate on this point?

KT: I can elaborate on this very easily. I would not urge you to read all Commission resolutions because very few people can cope with five-hundred pages. But if you were to look into the resolutions on the right to education, which are only three pages each year, you would see that the right to secondary or university education has completely disappeared. We don't even have the blandest rhetoric coming from the Commission which would say that university education is a part of the right to education. The only mention is primary education, which is immensely dangerous. I'll use one example of Myanmar, formerly Burma. Myanmar defines primary education as only two years, nine to eleven, which means that the government can say that it has accomplished all-encompassing primary education.

            What we know from all educational research is that this is useless. What is needed is at least five years of education so that people can sustain what they have learned. If it is less, they become functionally illiterate later.

            Also, coming back to your point about economists, one of my proudest accomplishments has been to learn to talk to the economists, to learn their language, which is a completely different language than human rights language. And we are coming to this very useful point that you raised - primary, secondary, university education, what do we mean? The economists agree on the need for longer primary education because they want education to be supportive of poverty eradication. So there we can establish the common language with the economists. They know that secondary education has crucial importance for the eradication of poverty. Primary education on its own is irrelevant, because if it is only two or three years of education for children, they are prohibited from working because they are children. Such education has absolutely no influence on the level of poverty, so there we can build something of a common framework together with the economists if we could get the UN Commission on Human Rights to openly acknowledge the fact that secondary and university education remain part of the right to education.

            And there I don't speak about wealthy countries - I happen to teach in one of them - where in Sweden education is still a free public service, we don't charge any tuition, not even at the post-graduate level. Norway follows the same principle. But it's not only about wealth. In Latin-American countries such as Uruguay and Argentina, despite economic difficulties, they still proudly say that education is a right and university education should be free. But there what is necessary is firstly an open political acknowledgement of the fact that it is a human right, not this silent diminishing and revision of the right to education which we can see from the output of the Commission on Human Rights.

HRF: Following from your comments on the duration of primary education, do you think that it is timely for a General Comment by the Committee on Economic, Social and Cultural Rights to address both the school leaving age and a minimum duration of primary level education?

KT: That would require extensive research by both the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child. On the global level we have a complete muddle. With global education strategists in the 1990's having introduced the concept of "basic" education, instead of primary or elementary education, this has created a problem because there is no common definition of what is "basic". Is it longer than primary education or shorter? To respect state sovereignty, as it said in global education strategies, each country defines the duration of primary education, meaning that it can be as short as two years in Myanmar, three years in Angola, which is insufficient. So if the Committees were to define the necessary duration of education they would have to fall back on human rights law. We don't talk that much in human rights about elementary or primary or basic education. We insist that education should be compulsory, and that it should last until children reach the minimum age of employment. So there we have very clear criteria in human rights. The minimum recommended age for employment is sixteen. The globally accepted minimum is fourteen.

            This would present the Committees with an important task but one that would need lots of battling, to criticise all governments which have defined their primary or elementary or basic education as two, three or four years, saying it has to be at least until the age of fourteen, better until the age of sixteen.

HRF: Moving to the Commission on Human Rights, you have cited on many occasions the inability of the Commission to establish a human rights mandate on education as the basis of your request that your mandate not be renewed. Yet in the introduction to your report you state that, as your formal complaint to the OHCHR did not trigger any response, thus you recommended that the mandate not be renewed.

KT: The two issues can't be separated from each other. They are so closely intertwined that one can't segregate them. When the mandate on the right to education started, it did not start as a right to education, it started as one component of this very long resolution on economic, social and cultural rights including obstacles and difficulties faced by developing countries etc. When it started, I insisted that it should be defined as a human rights mandate. The Office of the High Commissioner for Human Rights subsumed it under what they call an economic mandate, so it is bundled under the banner of development. It is not treated as a human rights issue. It demonstrates a similarity between what the Commission does and what the OHCHR implements. It is indeed not a human rights mandate. If you read the resolution you will see that the term 'human rights' is mentioned only twice, and that's in quotes. So there is nothing which would define what a human rights mandate in education actually should be.

            I've lasted five years stating that gradually I should create conditions, draw the Commission's attention to priorities and the Commission would start altering its resolution. It hasn't started as yet. The complaint against the OHCHR has been now met by the silence of the whole secretariat of the United Nations for no less than five months, which means that there is again a close link between the two. The Office does not feel any pressure to do proper human rights work because the Commission itself has not defined this mandate as requiring proper human rights work!

HRF: Could you explain what you believe to be the basis of the Commission's inability to provide for a human rights mandate in education? Where can it go from here? Is there any hope, for instance, that the Commission would prioritise the protection of teachers in their work, or that it might address the problems of statistical invisibility?

KT: What I see as the problem is two-layered. Human rights mandates started because of well-argued, forceful, well-coordinated NGO campaigns. If we left human rights to governments, to the UN Commission on Human Rights, we would have never have accomplished anything. So I see the background for the Commission's lack of a much more assertive profiling of the right to education as the reflection of the absence of a strong vocal NGO community, which has created thematic mechanisms against torture or summary executions or freedom of expression. That does not exist for the right to education. You will not see teachers' trade unions coming to the Commission on Human Rights. They can't seek protection here because the Commission does not even mention the rights of teachers. They will go to the International Labour Organisation, which will protect them by the special procedure for freedom of association. So there you have a catch-22 situation - that still the vast majority of NGOs deal with specific civil and political rights issues or geographically isolated human rights problems. If you were to scrutinise NGO produced documentation to see what the NGOs have submitted to the Commission as a platform for what NGOs demand on the right to education, you will find nothing.

            This means that what is necessary here is the same growth of the human rights movement which we saw around freedom of expression or equal rights for women - good documents, sensible strategies, and then well coordinated lobbying to get government delegations to move, but NGOs have to take the initiative. It is obviously not a job of diplomats to do human rights research, and to draw up alternative platforms.

HRF: On a more particular note, you were unhappy with the translation of your report on the mission to Colombia. How did this come about?

KT: Unhappy is an understatement. I wrote my report in Spanish because I wanted to be able to directly communicate with government officials, with victims, and to be able to present my report and to defend it in the language of the country. Fortunately, I am a Spanish speaker so it wasn't difficult. Knowing that the majority of the people at the Commission do not speak Spanish, people rely on the English translation so I insisted on getting an English translation just to be able to check the accuracy, and the report is completely inaccurate. The very Executive Summary, when I make an important point that the government of Colombia should affirm that its international human rights obligations are legally binding - which the government doesn't do, it only invokes the Colombian constitution - that was turned in English "translation" into the opposite, that the government should affirm that international human rights obligations are being applied in the country. So it's the opposite of what I have stated. It's not inaccurate, it's a distortion of the report to turn my statement around.

HRF: Is this a unique occurrence?

KT: This has happened on very many occasions. Not a single report of mine has been processed by the editorial and translation service without at least one or two phone calls from the OHCHR asking me to delete one or two sentences, one or two points, because they were too critical of individual governments. So that is standard procedure.

HRF: To finish, you stated in your report that you had sent six letters to the Turkish government and received no reply, yet at the Commission the Turkish delegate stated that they had sent three replies to you through the OHCHR. Has there been any explanation?

KT: Yes, there is an explanation. I sent six letters to the Turkish government subsequent to that exchange of correspondence with the Turkish ambassador. And even that exchange of correspondence that he referred to were not letters addressed to me but to the Commission on Human Rights, and which did not enter into the substantive points that I was raising but rather accused me of operating outside my mandate, because for Turkey, as with any country, I had inquired into crucial issues. One of the issues which I always investigate is the balance between military expenditure and investment in education. In Turkey, as in China, as in Colombia, there is clear preference for military expenditure over investment in education. The government of Turkey has consistently held that this is outside my mandate. This again is the interpretation that it is not a human rights mandate, it is an education mandate, so I should go to schools and count the teachers and schoolbooks, rather then look at the role of the military in the country's education.

            One of the issues that I raised also was that Turkey denied me a meeting with the Higher Education Council, where the armed forces of the country are directly represented, and which govern Turkey's higher education, which means the military have a formal seat in a decision-making body which creates the policy for Turkish universities. And the government again claimed that it was outside my mandate, that I should only look at primary education.

‘UN agencies need to get courageous’

UN-HABITAT and others are not speaking out strongly enough against forced evictions, says SR on right to housing

In his report to the 60th Session of the CHR, the SR applies his signature indivisibility of rights-based, and a gender-sensitive, analysis to examine forced evictions, which were recognised as a gross human rights violation in CHR resolution 1993/77. In studying the issue, the SR conducted country visits to Peru, Afghanistan and Kenya. He also conducted regional consultations in New Delhi and Mexico City, specifically to gather information regarding women's housing experiences.

In an interview with HUMAN RIGHTS FEATURES, the SR discusses forced evictions in terms of both a civil and political rights, as well as an economic, social and cultural rights, framework; the role of civil society in addressing the scourge of forced evictions; the linkage between preservation of one's culture and adequate housing; and also responds to critics' charges of the lack of justiciability of the right to adequate housing.

Human Rights Features (HRF): Land reform has been attempted in various countries but either has been unsuccessfully implemented or hijacked by landowners. You have criticised Peru for taking a strict legal approach without considering factors such as access to social services (e.g. sanitation) but shouldn't the first priority be getting basic property rights?

Miloon Kothari (MK): Well, no. The situation in Peru is that…following the recommendation of Hernando de Soto…they set up an institution called COFOPRI [Commission for the Formalisation of Informal Properties] which is essentially set up to provide title to people. What happened subsequently is that titles were given in many cases to people…and there was no follow up with provision of water, electricity, sanitation, etc. There were no clear equal rights of women, so the position that I have taken in the report on Peru is that you cannot tackle the issue of housing just by providing title….The logic that was used by de Soto and by this institution was sort of a neo-liberal logic saying that if you provide property rights, people will be able to leverage the property rights to get loans…but that hasn't happened. The evidence shows that …neither are lending institutions willing to lend to the poor across the world nor is there a capacity to borrow and even if there were, people don't have money.

            So the position that I'm taking is, according to Peru's international human rights obligations on the right to housing, they have to follow a much more holistic approach ….The World Bank actually funded this organisation, COFOPRI, and they, as you know, adopted de Soto's ideas. The difference between that approach and the rights approach is precisely this: that the rights approach looks at the issue from an indivisibility-based perspective keeping in mind women's rights while the neo-liberal approach is more on an economic kind of level, viewing land and property and housing as an economic commodity rather than as a social [good]. So that's the big difference.

            And I think land reform…in rural areas across the world has failed primarily because states have either not institutionalised it or have not followed the rights approach so there hasn't been a redistributive policy, which is what you need. In the cities in the third world, for example, you have so much density, so much concentration of land where a lot of people live and large stretches of land where the wealthy live. So unless you have policy of land redistribution, which is what the rights approach calls for, and wealth redistribution, you are not going to be able to solve the problem.

HRF: Arjun Sengupta has commented on conflicts between rights, for example, the right to development versus the right to preserve one's culture (including housing space). In terms of guidelines on adequate housing, to what extent should the right to housing encompass preservation of one's culture?

MK: I think you should look at the content of the right to housing as has been defined by the Committee on Economic, Social and Cultural Rights in General Comment No. 4. One of the key elements of the right to housing is that it should be culturally adequate, which means that there should be adequate space, there should be adequate building materials that are locally available, [and] the technology should be there. And one of the problems with the modern housing system has in fact been that there has been a homogenous solution for all the problems.

            So, for example, low-cost housing that is built is usually one room and we found that in many missions in Peru. I've [also] had a recent communication on the plantation housing issue in Sri Lanka where you have these line homes.

            And the main problem is if you do not have separate space for women, for children, you don't have space for privacy, which are…culturally required as well, you have many other problems. You have problems of violence, problems of ill-health and so it's absolutely critical. I don't see the right to development being realised without there being a significant focus on cultural issues related to housing, health and food….

            The only place where I can see a conflict, of course, is…if you take certain Islamic countries where you have Sharia dominating, and maybe that's seen as a cultural thing and that leads to discrimination.

            But I think purely from a perspective of the content of the right to adequate housing, in my experience, [the cultural aspect] is not focused on enough. It's very often left out, including in India and other countries where we have housing programs. It happened in Delhi recently… There are a lot of evictions where people are being moved to the periphery of the city and the designs there are not at all conscious of culture. In fact, they are trying to impose a particular culture where they have a common courtyard and you have people living all around…so you have Muslims, Hindus, and it doesn't work because it leads to conflict. So…I think there's a strong component of the right to housing being culturally adequate which has to receive a lot of attention.

HRF: Do you see a role for participatory mechanisms in developing such guidelines?

MK: Yes. In fact, in the recent work we've done on women and housing, for example. One of the main areas we're focusing on is when housing policy is designed, housing programs are designed, there has to be participation from the women because they have the experience and there has to be active involvement also in the building process and also when you look at the situation of forced evictions, resettlement, [and] many other areas. Participation, even according to the Committee on ESC Rights, is a very key element…. There has to be consultation, people have to be informed what is going to happen to them, and there has to be active participation.

            Also, I think in the last 10 years, we've seen the emergence of something called Community Action Planning which we have in India, in Mexico, [in the] Philippines, where some of the best solutions to housing problems in the slums have been [developed] through collaborative efforts between NGOs, local authorities and people on the ground. And the people on the ground have been involved in actually designing, upgrading where they live, or resettlement.

            And that's the best solution because if you try to impose the solution from the top…that doesn't [work]. And, anyway the right to participation, the right to be informed, [and] the right to internal self-determination requires active participation. That's a very fundamental right. And this is in fact another argument for the indivisibility of rights approach. So you cannot look at ESC rights without looking at the right to participation, which is essentially a civil and political right.

HRF: Do you perceive any gaps in the mandates of the various UN agencies with respect to housing, specifically as concerns forced evictions?

MK: Yes, I think that given the scale at which forced evictions are taking place around the world, there isn't a sufficient response from the UN agencies. UN-Habitat has a global campaign on security of tenure; they've set up a task force on evictions. UNHCR is looking at issues related to displacement. In fact,… Afghanistan…[is] the only country where UNHCR has taken on the mandate of internal displacement which is very good, but…I think the UN agencies have to be stronger. There is a tendency amongst agencies to be, when it comes to violations of human rights,…conservative because they feel they will get backlash from states…UNDP, UNICEF, UN-Habitat…they all have mandates flowing from global conferences, from human rights instruments. For example, UN-Habitat has the Habitat Agenda which is very clear on forced evictions and on the right to housing….Essentially, by not being more courageous and by not putting forward a more strident, moral position, they are actually failing in their duties to protect people because you cannot say that you are an agency that is trying to resolve the human settlements problems in the world and …you're not doing anything about it…

            [T]hat's why I called for in my report in my statement yesterday that the Commission has to take a leadership role. It has to condemn forced evictions and it has to make it more an explicit part, not only of my mandate, but of the mandates of other Rapporteurs because forced evictions affect the right to food, the right to health, issues of violence and it's not enough to have just a mandate on internal displacement.

            I'm not advocating a separate Rapporteur on evictions…. [b]ut there's a need for a leadership role and I think the OHCHR, because they also have a UN housing rights program between that office and UN-Habitat, and the Commission has to take the lead….

            And that's why I recommended that the Commission authorise an expert seminar so we could come up with guidelines because the guidelines, the instruments that are there right now…I feel they're insufficient because they don't tackle all the different dimensions of evictions. So we need new guidelines or guiding principles and at the same time…we need states to have very clear policies, legislation, acts on evictions which follow essentially the General Comment No. 7 of the Committee on forced evictions…. It tells you step-by-step [what] you have to [do]…: you have to consult people, you have to inform them, you have to involve them, and you have to, even if people are displaced,… resettle [them]…in keeping with their rights according to the instruments.

            I think the problem with Kenya was not that those evictions may not be justified, they probably are justified because people are living in dangerous conditions, but the process that you have….[W]e need one instrument and it doesn't have to be a convention, covenant, it can be just guidelines….I'll continue to work for that and I would like at some point before my mandate ends, that some standards…make it into one of my reports because then it becomes something from the Commission.

HRF: What role, if any, do you see for humanitarian agencies, national human rights institutions (NHRIs) on forced evictions?

MK: … [I]f you're talking about HCR, ICRC, others,… I would strongly advocate for UNHCR following…what I consider has been a very positive experience and [the] very critical role it has played in Afghanistan to actually seriously look at adopting the IDP agenda globally because I think the agency is particularly equipped both professionally and in terms of size of the agency to be able to make significant contributions…so I think humanitarian agencies need to take up much more stridently the issue of evictions and not just limit it to refugee situations or an emergency type of situation.

            [On NHRIs,] I think there have been positive developments. There are institutions in India, in Philippines. In Kenya the new National Human Rights Commission [is] taking up the issue of displacement as a violation of human rights and that's positive, but I would say that that should happen with all the institutions and I think that would only be appropriate because one of the problems with human rights institutions historically has been that they have largely been civil and political rights oriented, and I think it doesn't make sense. And even if you are civil and political rights-oriented you can still take up the issue of forced evictions. You can use the entry point of right to security of the home, security of the person, freedom of movement, protection from inhuman and degrading treatment….

            What I welcome very much in my report is the attention that international NGOs like Amnesty International and Human Rights Watch and others are giving to linking evictions with housing…. If you see the Amnesty report on Rwanda and Angola…[and] if you see the Human Rights Watch report on China, it's for the first time that these organisations are actually saying that evictions should stop and that there should be a human rights-based housing policy as one way of dealing with eviction even in post-conflict or conflict situations. I consider that one very positive step and I'm trying to encourage that. I think the international NGOs can actually show the way and also the humanitarian agencies but the scale of the problems is so big that we need all actors too and that is the reason I decided to focus the report this year on evictions.

HRF: Certain states, while paying lip service to housing rights, deny its justiciability. How do you seek to address this issue?

MK: Well, if you know we had the first Working Group on the Optional Protocol to the Covenant [ICESCR] met and it was three weeks back, four weeks back, and the resolution from the Commission last year actually requested the Working Group to have consultations with Rapporteurs, so they had one. It was Paul Hunt, Rapporteur of the right to health and I.... It was actually very, very productive. We spent the whole day with governments. That was a true interactive dialogue which had lots of questions and one of the main points [that] came up was the question of justiciability and there's several issues.

            One is that many of the doubts that the countries are raising on justiciability on ESC rights have actually been overcome on the debate on the CEDAW protocol. That's one point. [The] [s]econd is that constitutions, recent constitutions and amendments to existing constitutions…over the last, at least, five years have shown a very clear tendency to recognise ESC rights to the same level as [civil and political rights]. It's not only South Africa , it's also the draft constitution of Kenya which I consider even more progressive. …[T]here are national laws that have been put into place, there's more and more court judgements that not only recognise ESC rights but to use international human rights instruments as a basis for that recognition so it's courts in many countries but also regional courts. You see, for example, the Ogoni judgement of the African Commission and … so for governments to come here at the Commission or anywhere and question justiciability is actually inconsistent with the facts, including the Indian government. They come here and oppose the Protocol but at home we have recognised the justiciability of these rights.

            The [other] point I would make… [is] that the justiciability issue is very much overdone because you cannot implement ESC rights just through the courts. Even if you get a good judgement as has been happening in many judgements in India, for example, they're not implemented. So, finally it comes down to policy, administrative decisions, civil society mobilisation, a lot of, sort of, paralegal work,…negotiations,… solutions that communities themselves present…. [I]f you only focus on justiciability as a means of realising ESC rights you are actually missing out on a lot of other things…

            And if we can show through positive examples that….the rights have been realised in many countries using other strategies, I think that will help. And that's also why in my work I am trying to collect…good examples, and in my final report to the Commission I will present a compilation of [these examples].

RIGHT AGAINST TORTUNE

‘The pattern of denial persists’

THEO VAN BOVEN is Professor of International Law at the University of Maastricht. His work has embodied the development of international human rights law, first as Director of Human Rights at the UN, and later as both a member of the Sub Commission on the Protection and Promotion of Human Rights and the Committee on the Elimination of All Forms of Racial Discrimination. In 2001, Van Boven was appointed as Special Rapporteur Against Torture. He spoke to HUMAN RIGHTS FEATURES about the difficulties he has encountered and the parallels in states' denials of human rights violations, both past and present.

Rights Features (HRF): It was once stated in a report by Amnesty International that patterns and incidences of torture did not appear to have diminished from the time when Amnesty began. Would you agree with this general view? And, if so, given that torture is the most criminalised of human right violations, why have we not seen a general decrease in levels of torture?

Theo Van Boven (TVB): I don't know whether that is fully true. I think that we are much more aware of torture practices now, there is much more information, but that is on human rights generally. So you assume, or there is a tendency to think, that there are more violations now than in the past. And of course, with torture in particular, there is a lot of torture which is not still reported. It is when there are political figures, opponents who have their voice heard or who have valid contacts with others, torture about these people becomes known. But there is a lot of torture of marginalised people, street children and so forth, who have no voice. So we don't know the magnitude of the problem.  

HRF: Your position as Director of the UN Division on Human Rights was the functional equivalent of the present High Commissioner for Human Rights. How do you see the development of the OHCHR as compared to how you would have expected it to develop in the 1970s?

TVB: After the Cold War we had the Vienna Conference which set the basis for the Office of the High Commissioner for Human Rights. I was the Director and was more subordinated to my superiors, to the Secretary General who could hire and fire me. The High Commissioner has a stronger position, the mandate being linked to the decision of the General Assembly, so the authority and margin for action are wider. I had always tried to test the margins as Director of Human Rights. They are broader now, in that the High Commissioner can take initiatives on his or her own authority. I welcome that. Whether it has improved the human rights situation in the world I don't know, but I do think that human rights has now been coming at a much higher level. Yet, it has become also more politicised. 

HRF: In 1982 your contract as Director was not renewed because you exposed the Dirty War and due to your subsequent confrontations with Argentina. Gauging by the reaction of the Spanish delegation to the report of your mission to Spain, do you feel that much has changed in the last 22 years?

TVB: No. In a way what struck me - and I've been thinking about it, of course - [is that] what happened in Argentina and what happened in Spain are not much comparable. What happened in Argentina was much worse. But what is the same is the pattern of denial. In 1981-2 I worked very hard on the setting up of mechanisms to deal with disappearances in Argentina. We reported secret detention centers where people were tortured, we reported a lot of disappearances. This was all denied. Later on it proved to be true. What struck me now with Spain, on this notion of denial, was when I visited Spain and the authorities denied this, I asked, "Do we have a common ground?" Because the first step, I think, for dealing constructively with these issues is an acknowledgement that there are problems. Then you have grounds to make progress.

            What also struck me is that the countries of the European Union have been largely protecting Spain, politically speaking, in as much as the military dictatorships of Latin-American countries at that time [early 1980s] worked together. Now again it might be a little bit excessive to make a comparison between the European Union now and military dictatorships in Latin America, but I think that if the European Union - and I say this as a citizen of a country of the European Union - takes human rights seriously, they should also be willing to criticise their own records. Only then will their position become credible vis-à-vis the other countries of the world. As long as they close themselves up and only criticise the others this is not credible, because there are things to be criticised. Perhaps they are not of the same severity as elsewhere in the world, but there are human rights violations, there are major shortcomings of human rights in countries of the EU, and that has to be acknowledged. Only then, I think, we can work together for human rights on a global basis.      

HRF: Do you fear any reprisals by way of regressive resolutions from the European Union?

TVB: Well, I'm not involved in this. I hear rumours that they are discussing issues as to whether to take note of my report, to take note of any "appreciation" for my report. These are small diplomatic battles. I don't care too much about that. But what I do care about is - as a result of all this confrontation with Spain - that this [must] not end up in weakening the mandate. The mandate should be strengthened and should continue. My own position is something different because in the future there will be other mandate- holders and so forth, but if this leads to the weakening of the mandate, also where the European Union are under the political pressure of ministers or prime ministers to water down the mandate, that I would seriously regret.

HRF: You have taken a new approach in your reporting this year by undertaking a follow-up on the implementation of previous recommendations to certain states. As this seems so obviously important, does it not surprise you that other Rapporteurs have not taken the same initiative?

TVB: The problem here is that as Rapporteurs we have very limited means. Most have only one staff assistant, and we are so busy with what comes on our desks everyday that there is a tendency to forget the need for follow-up. I felt the very valuable work done by my two predecessors, Fons Coomans and Sir Nigel Rodley, made it necessary to for me to pick it up again and to ask the governments what they have been doing. If there is no follow-up of this sort then we can forget about our work. What I find of great interest is that NGOs are also looking at the follow-up. We as Rapporteurs cannot do it all by ourselves, but with the assistance of others, and the vigilance of NGOs, plus the co-operation of governments - there is no doubt that this is crucial - I believe we can improve the process of follow-up.

HRF: Finally, to speak a little outside the confines of your mandate, you have written a great deal about development issues, including structural analysis of the causes of poverty. How strongly do you see poverty as a cause or a factor in human rights violations? 

TVB: Absolutely true. In terms of torture I think that the poorest, the most marginalised people are often considered as being close to non-persons, and are subject to police brutality, ill-treatment and others. But also, this applies to economic, social, and cultural rights. I see this in particular with regard to the right to health. When people are being deprived of essential medical services, also those who have been affected by HIV/Aids - I have a section on this in my report - when they are deprived of services that may in itself constitute inhuman or degrading treatment. When you are being deprived of the right to food, or when your house is being destroyed, these very fundamental deprivations as violations of economic, social and cultural rights may constitute in certain circumstances inhuman and degrading treatment or punishment. Poverty causes, and is in itself a serious violation of basic rights.

            What is important as a human being is that you can make choices. Now if you live under political oppression you cannot make choices. But if you are a poor man, woman or child living on the street what are your choices? So again, here we see how much all these rights are interlinked, and poverty in itself is a violation of the whole range of human rights.

ARBITRARY DETENTION

‘We gain... when CTC integrates human rights’

Chairperson of the Working Group on Arbitrary Detention LEILA ZERROUGUI spoke to HUMAN RIGHTS FEATURES about the logistical and other difficulties routinely faced - and tackled - by the Working Group, and how NGOs can help ensure that the Working Group is not seen by States as being biased…

Rights Features (HRF): What are your views on the resolution on arbitrary detention, and is there any mechanism, formal or informal, by which you can make your views known to the sponsors or co-sponsors of the resolution?

Leila Zerrougui (LZ): Usually, we don't interfere in the resolution. We let the Governments decide - because our mandate comes from the Governments, and we deal with our mandate in conformity with their position - the position of the majority in the commission. So usually we don't interfere. We wait until the Governments decide about the resolution. If sometimes we have something special we have to add, we ask the Governments to add our view in the resolution. But at the beginning of the process we never interfere.(…) It is for the Governments to decide how we have to deal with our mandate.

            (…) For example, this year we talk about the tendency of detaining persons because they use the internet. So it is our way of drawing attention about our concerns. But in general it is Governments who decide… and NGOs too… Governments prepare the resolution but they have meetings with NGOs. So they rely on those. And we also let them know about our concerns in our interventions, in our recommendations, in the conclusion of our report, and when the chairperson presents the report.

HRF: You mentioned at the informal briefing yesterday that the Working Group is unable to provide comments or state positions on certain countries or regions because there is not enough information coming from those regions. Could you elaborate on that and also suggest what NGOs can do by way of follow up to the Working Group's recommendations to highlight the situation within their own countries, in the media, for example?

LZ: A very difficult issue for us is to deal with communications on specific cases from particular countries. The Working Group has three possibilities to deal with arbitrary detention: The first is visits to specific countries, but this depends on invitation from those countries. So we ask the Government to visit the country but it is not always possible.

            [We can also] use the possibility of standing invitations, going to countries which have agreed in principle to receive special mechanisms. Some countries are on the list, but when we ask to go, it takes a long time to organise a visit. So we consider that this possibility is, maybe, the best way to know about the whole situation in a specific country.

            We also try to have a wide view on all the continents. For example, the Working Group had never been to Africa. They never had the time to go. This year we noted that South Africa had extended an invitation. So we asked for a visit but we have not yet had a decision from this country. So this is the first way to try to deal with specific cases.

            The second way is to look at issues. So this year we saw that a substantive issue is human rights and counterterrorism. Sometimes it concerns one or two countries or three or more.

            The third is communications, individual communications. But this is the main problem… because in individual cases we have no time to deal with many cases. What we noticed is that the NGOs that are working with the Working Group are concerned with specific issues in a specific place. For example, last year we worked on twelve countries, only twelve countries. So it can undermine the credibility of the Working Group if every year we had the same country on our agenda. If every year we have three communications on China, two on Cuba, it seems we are playing a game with those countries. And, it is not at all what the Working Group wants. Our concern is to deal with the most grave situations whatever they are. It is not for us to work on one or two countries. We want to work on the difficult situations.

            So we encourage NGOs to send us communications on as many countries as possible to reinforce the credibility of the Working Group. So [that] the Working Group will not be attacked in the Commission by countries considering themselves victims and [believing that] that the Working Group is only dealing with the cases in these specific countries.

            I am asking NGOs to be very careful about this issue. It is important that the Working Group, as a mechanism to help those who are in detention, [that] when we talk about issues, our credibility not be undermined by a circumstantial interpretation of the way we are dealing with it. We would like also to explain that we do not have the mandate to deal with detention during conflict…armed conflict… international conflict -we are competent on internal conflict. Sometimes we [know of] places where there are a lot of problems with detention and we never have had any complaint about this specific country, and I consider that the NGOs can help the Working Group.

            As for the communications, it is not only to inform us about a case or to give us a list and wonder why we are not dealing with the cases you sent to us, it is important to state clearly why you consider the detention to be arbitrary.

HRF: Some States are calling for a specific emphasis on objectivity, impartiality, and non-selectivity in regard to the work of the Special procedures in general. How do you feel about the implied doubt about the credibility of the special procedures?

 LZ: It is my concern also, because I cannot believe that if you have a special procedure at the UN level, and if the special procedure is not dealing with the issue that is within their mandate, with fairness and in an impartial way, you can help the victims. We have to keep in mind that our concern is to help the victims of arbitrary detention, torture, extrajudicial killings… We rely on our sources. We cannot ask one specific NGO about all the issues. But the most important [thing] is to sensitise NGOs that are not aware of our mandate to draw our attention to this problem. Otherwise I can understand that if you are a country and if everyday all the mandates are talking about you - even if there are problems in your country, you will consider you are not the only one. Why are the mandates always talking about you?

            So I can fully understand the position of Governments who are always under the report of the Special Mechanisms but I don't think there is partiality from the mandate holders to deal with specific cases. We rely on our sources so it is important to sensitise, to explain how to bring the issue to the special mechanisms, how to be sure that they are relevant. Sometimes we see cases of disappearance, of torture, but we cannot deal with the case.

            Usually we see lots of communications dealing with conditions of detention… it is not our mandate. Our mandate is the legality of detention. We have three categories. First, is the person detained without an order from the court? So, [that means] the legal basis is absent. Second, is the person detained because she or he use or express pacifically, without using violence or calling for violence, their right of expression, of opinion, of assembly, of association? [Here,] the rights that are in the Universal Declaration [are violated]. Third, is the violation of such a gravity as the [denial of the] right to fair trial. So it is important that people send communications explaining that one of these stages has been violated.

HRF: What are your views on the suggestion that the Special Procedures interact with the Security Council on a more regular basis. Because many States are opposed to the same assertion on the CHR credibility. They say that the Security Council's mandate is security, so why must there be an enhanced role for the Security Council on human rights.

LZ: It is a very difficult issue… we consider that there is a link between security and human rights. It is so especially in the issue of terrorism and counterterrorism [where] we have to take into account protection. The Charter of the United Nations is based on peace, security, and human rights. So we cannot consider that human rights are out of the perspective, the work, of the Security Council. We hope that… it will be important for us to be at least taking into account, our mandate taking into account, the policy of peace and security.

            I think we gain something when the Counter Terrorism Committee integrates the issue of human rights. At the beginning it was refused. I think it is not easy to get States to agree on the issue.

            But I think we are going to link more [and more] the human rights issue with the peace issue, with the security issue. So I hope that in the future we have more cooperation and linkages with the Security Council. I don't believe that they can work on their own and we can work on our own.

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