| Volume 7, Issue
4 |
4 April-12 April 2004 |
But
these are your prodigies
The
Commission on Human Rights is cracking down on its own
creations
The
Commission on Human Rights (CHR) does not recognise the
right to education.
Sounds
bland, but coming from Katarina Tomasevski, it's a whiplash.
The feisty Special Rapporteur on the right to education
raised a storm this year when she recommended that her
mandate not be renewed. If the Commission on Human Rights
refuses to consider education a human rights issue, she
pointed out, then it makes no sense having a mandate on the
right to education (see interview in this issue). "Ambiguous and under-funded
mandates have been created," she charged, "so
member States can stand back and watch them fail".
The
Special Procedures are the CHR's offspring, so to speak,
having been created by CHR resolutions. In that sense, they
have had an unusual childhood. The CHR sent them out to
report on violations, and when they returned, task
completed, the parents didn't want them anymore. They won't
toe the line, they talk back at us, the progenitors
complain.
And
so, the punishment began, not always blatantly, but the
implication was clear. The Special Procedures, States have
argued from the beginning, are overstepping the line, going
to places they have no business in, saying things they are
not supposed to. In 1998, the United States lashed out at
the Special Rapporteur on extrajudicial executions who had
expressed his views on the use of the death penalty by the
US. Five years later, attitudes have only hardened. In 2003,
Washington did not agree to a request for a visit by the
Working Group on Arbitrary Detention to Guantanamo Bay,
saying the ICRC was on the job and that the Working Group
lacked the competence to address what the US considered
law-of-armed-conflict issues, not international human rights
matters. It further failed to respond to communications sent
by the Working Group regarding four detainees at Guantanamo.
Cuba
won't allow the Personal Representative of the High
Commissioner Christine Chanet to enter the country. In the
interests of transparency, we presume. India has not
extended invitations to any of the Special Procedures during
the past ten years. Who said democracies have nothing to
hide?
Australia,
meanwhile, touched a new
low, rejecting the Working Group on Arbitrary Detention's
report of its visit to the country in 2002. This, despite
the fact that the Human Rights Committee had reached the
same conclusions as the Working Group on Australia's
mandatory immigration detention system.
The
hostility has increased, the reactions have begun to sound
more like accusations. This year, John Dugard, Special
Rapporteur on Palestine, was accused by Israel of being
biased and of having a "political agenda".
And
last week, India commented acidly on Special Rapporteur on
Torture Theo Van Boven's remark that he was yet to receive a
response to his request to visit India. Was the Rapporteur
assuming that only by inviting him would India be able to
demonstrate its commitment to human rights and democracy,
the eminent academic was asked.
The
substantive battle against the Special Procedures, however,
is being fought in the informal meetings on draft
resolutions. The draft resolution this year proposes to
expand the scope of the earlier resolution on thematic
procedures by including all the Special Procedures. Cuba and
the LMG have already expressed their reservations to the
expanded scope, the former observing that including both
kinds of mechanisms in the resolution was "like mixing
oil with vinegar". Sour metaphors apart, Havana also
has major reservations regarding the exhortation to States
to ensure that persons cooperating with the Special
Procedures are not subjected to adverse treatment. It is
unclear why Cuba bothers to raise objections in the first
place, since it is not about to invite any of the
Rapporteurs to the country.
Another
concern of the LMG - and Cuba, their comrade-in-arms - is
with including references to "independence,
impartiality and non-selectivity" in the work of the
Special Procedures.
To
those unfamiliar with the LMG's devious ways, this may seem
innocuous. After all, it was with those prerequisites in
mind that the Special Procedures system was devised.
However, for the LMG and its African allies in Room XVII,
the attacks on the Special Procedures are part of a bigger
plan - to weaken and ultimately do away with the Special
Procedures system. They have already managed to emasculate
the Sub Commission. A direct assault on the Special
Procedures system was a natural progression.
Finally,
yet another issue on which Asia, Africa, the US, Russia and
Australia find themselves agreeing with each other - we
should now stop acting surprised at such occurrences - is
that term which could only have been devised by someone who
loved to scare children: Standing Invitations. Cuba and the
LMG have great fun playing with the suggestion, and coming
up with innovative - but inadequate - counter-suggestions,
such as "[u]rge States to consider welcoming the
Special Procedures…". The rest of the bunch, however,
yells "Sovereignty!" before they start running. It
is as if they expect the Special Procedures to descend, Mars
Attack style, hell-bent on invading Earth, which, in
Washington, is merely a synonym for the US.
A
final bone of contention is the suggestion that the Special
Procedures interact more frequently with the Security
Council. Cuba and the LMG argue that this goes beyond the
scope of the Security Council's mandate which is
international peace and security. However, as many observers
aver, gross human rights violations have the potential to
result in threats to peace and security. The sponsors appear
to be working hard on alternative formulations; however, the
impact is being felt already. Those attending the informal
discussions on the draft resolution on arbitrary detention
found that the text of last year's resolution - sponsored by
France - encouraging governments to "invite" the
Working Group on arbitrary detention had already been
watered down in the new draft to "welcome the Working
Group", presumably to accommodate not just the LMG and
Cuba but also allies such as the US, Australia and Russia.
Despite
the obvious hostility, the Special Procedures appear to be
holding firm, as they should. As the CHR continues to back
down from its responsibilities, it is the Special Procedures
- holding up a body that clearly lacks a spine - that
inspire hope. Those who heard the Special Rapporteurs,
Independent Experts and Chairs of Working Groups last week
got a glimpse into what human rights was all about, and were
inspired by it. Hope and inspiration, sentiments that take
flight the moment you walk into Room XVII. It is time now
for the parents to be worthy of their children.
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.
End
of impunity
Although
combating impunity for Ba'athist human rights violations was
not the stated justification of the Coalition's action, it
could be a fortunate consequence of the war.
There
is, however, a gulf between the US and the rest of the
world's democracies in the perception of legitimacy of
international justice mechanisms. The current US
administration now strongly distrusts the UN and IGOs and
has strenuously resisted international input in Iraq that
could have provided know-how and other important resources
necessary for building institutions capable of carrying out
legitimate and effective justice for the past regime's
crimes.
One
aspect of the criminal accountability process that would
have benefited from increased utilisation of international
expertise is the protection and forensic exhumation of mass
gravesites. In the first months after the end of major
military operations, the Office of Reconstruction and
Humanitarian Assistance (ORHA, predecessor of the CPA) was
under orders to "assist local authorities" in
exhumation of gravesites. ORHA did not secure the
gravesites, provide forensic teams, or inform Iraqis about
planned procedures. Coalition casualness resulted in hurried
and unprofessional exhumations by understandably emotional
Iraqis. In the process, evidence and the identity of many of
the remains was inadvertently destroyed in gravesites near
al-Malawil, around Basra, south of al-Hilla, and near al-Birigisia.
Mass
gravesites of this kind almost always result from natural
disasters or mass atrocities, and will undoubtedly provide
key evidence in criminal trials if they are handled
properly. After initially bungling the coordination of mass
gravesites, the CPA now has an organised strategy that
demonstrates the utility of seeking input from the
international community. The Coalition estimates there are
over 250 gravesites around the country and key sites have
been identified that are likely to be related to major
incidents of atrocities; such as the 1988 Anfal campaign and
the 1991 and 1999 massacres of Shi'a in the south. Swedish,
Finnish, Danish and German forensic teams are being employed
to process select sites.
When
trials of the former regime begin, which quite clearly they
must, one of the major concerns is the need to avoid the
taint of victor's justice. Under international humanitarian
law, all legislation enacted by the interim Governing
Council is under the authority of the CPA, including the
Statute of the Iraqi Special Tribunal. As a result, the
Tribunal will lack the appearance of legitimacy and
objectivity to many Iraqis, Arabs and other members of the
international community.
The
Tribunal Statute fails to strike the proper balance between
protecting Iraqi interests and utilising international
standards and expertise. While the Statute laudably provides
a prominent role for Iraqi law and Iraqis as prosecutors and
judges, the role for Iraqi victims needs further
clarification.
From
the outset, the CPA was strongly encouraged to consult a UN
Commission of Experts on international criminal law, as
existed for the ad hoc international tribunals and other
special courts. Instead, the Tribunal Statute was drafted in
a secret and insular process, and contains numerous
problematic provisions that should be corrected.
While
many of the Statute's provisions are taken from the ICC
Statute, several taken from Iraqi Criminal Law are vague or
ill-defined and could lead to prosecutorial abuse. A
discussion paper by the NGO Redress indicates that the
Statute does not explicitly provide for jurisdiction for
individual acts of torture, and that the standard of proof
for guilt is not specified. Several incorporated provisions
of Iraqi criminal law violate international law. For
example, the Statute permits the death penalty, coerced
confessions, and in some circumstances the exclusion of
lawyers during questioning.
Regrettably,
the Statute provides only a limited role for international
prosecutorial and judicial expertise. A few commentators
have suggested there is sufficient capacity within Iraq to
pursue and prosecute violations of domestic and
international law, but most suggest this is not the case. It
has also been argued that applying local justice is
consistent with the ICC Statute's principle of
complementarity. However, the Rome Statute calls for an
objective review of domestic juridical capacity, which has
not occurred in Iraq. Prosecutors and judges with experience
trying complex international crimes should be given greater
roles. Perhaps most importantly, the Special Tribunal should
be structured so that it effectuates a transfer of skills
and resources to the rest of Iraq's legal system during and
after its period of operation.
In
addition, a necessary prerequisite to accounting for past
crimes and for securing the future rule of law is an
overhaul of the Iraqi criminal justice system. Some positive
steps have been taken already. The Revolutionary Court,
State Security Court, and Special Provisional Court - all
instruments of repression under Saddam Hussein's regime -
have been disbanded. CPA Order 7 suspends the death penalty,
prohibits torture, cruel, inhuman and degrading treatment or
punishment, and prohibits discrimination. CPA Order 31(2)
suspends provisions of the Iraqi Penal Code and Code of
Criminal Procedures that were contrary to human rights
standards. The CPA now claims that more than 600 vetted
Iraqi judges are adjudicating cases in over 500 Iraqi
courts.
Several
new instruments of judicial oversight have been created
under the Coalition. A Central Criminal Court has been
created to prosecute Iraq's most serious offenders,
including loyalists to the past regime who have committed
crimes against Coalition forces. Prosecution in the court is
under amended Iraqi criminal law. CPA Order 15 and Order 35
create bodies with the capacity to review judicial
appointments and tenure. Amnesty International has, however,
pointed out that eligibility for judicial appointment is not
entirely in conformity with the Basic Principles of Judicial
Independence, because unmarried or naturalised candidates
are discriminated against.
Accountability
of Coalition forces
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.
De-Ba'athification
of public institutions
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.
|
…And
no remedies |
|
Coalition
forces are immune from criminal prosecution under
Iraqi law. The US asserts that "credible
reports" of civilian casualties are investigated,
but information on the nature of such investigations
is not publicly available, and no numbers of civilian
casualties are kept by the Coalition. Human Rights
Watch has described the situation as a
"systematic failure to…sufficiently
investigat[e]…" the "excessive or
indiscriminate use of lethal force by US troops".
The Iraqi Minister of Human Rights referred to these
civilian deaths as "criminal" and has called
for remedies. The US currently has a compensation
program, but it is reportedly structured to provide
assistance to benefit communities and sympathy
payments to individuals rather than to provide
restitution to Iraqi civilian victims and survivors. |
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.
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African
Court: Cause for celebration?
THE
entering into force of the African Court on Human and
Peoples' Rights ("the African Court") on 25
January 2004 ushers in a hopeful new era for the protection
of human rights in the African continent. The Court received
its fifteenth ratification on 26 December 2003 from the
Union of Comoros. The additional countries which have
deposited instruments of ratification or accession are:
Algeria, Burkina Faso, Burundi, Côte D'Ivoire, Gambia,
Libya, Lesotho, Mali, Mauritius, Rwanda, South Africa,
Senegal, Togo, and Uganda.
The
creation of the Court stems from the generally perceived
ineffectiveness of the African Commission on Human and
Peoples' Rights, the only body currently empowered to
receive complaints regarding violations of the African
Charter on Human and Peoples' Rights . As explained in the
Preamble to the Protocol to the African Charter on Human and
Peoples' Rights on the Establishment of an African Court on
Human and Peoples' Rights, the member states of the
Organization of African Unity (OAU) believe that the
"attainment of the Objectives of the [Charter] requires
the establishment of [the Court] to complement and reinforce
the functions of the [Commission]."
The
Court offers the promise of an authoritative regional
juridical body to interpret the rights and guarantees of the
African Charter, as well as the possibility of a venue for
individual Africans to seek redress of their grievances.
However, there are a number of issues that could hamper the
Court's effectiveness.
Individual
Access to the Court
Individuals
and NGOs with observer status before the African Commission
may only bring cases if the State Party involved submitted a
declaration accepting such competence at the time of
ratification (Articles 5(3) and 34(6)). As of 31 March 2004,
the Institute for Human Rights and Development in Africa
reported that only Burkina-Faso has acceded to such
jurisdiction. As the Association for the Prevention of
Torture (APT) has commented, in this regard "the
African system is fully in line with the procedural law of
other human rights systems which also restrict the
individual's right of access to international human rights
organs." However, the APT further notes "[i]t
would have been more respectful of the rights of the
individual if, at the very least, it were incumbent upon the
State which does not recognize the competence of the Court
to make a declaration to that effect". This is
particularly true given the additional hurdles that
individual complaints must overcome to be heard by the
Court.
First,
the acceptance of cases lodged by individuals falls to the
Court's discretion, even if the State has acceded: "[t]he
Court may entitle relevant [NGOs] with observer status
before the Commission, and individuals to institute cases
directly before it . . ." (Article 5(3)).
Second,
in ruling on the admissibility of cases the Court must take
into account the guidelines provided to the Commission under
Article 56 of the Charter. These requirements include, among
others, that no complaints may be submitted anonymously,
complaints cannot be "written in disparaging or
insulting language directed against the State concerned and
its institutions or to the [AU]", and that local
remedies must be exhausted "unless it is obvious that
this procedure is unduly prolonged."
The
merit of these two qualifications remains to be seen. On the
one hand, as one commentator has noted, the Court
"should not be viewed as a forum for offering
individual justice to victims of human rights violations . .
. it is by all means impossible. The court can act neither
as a forum of first instance, nor as the mandatory court of
appeal for all cases. Cast in this role, the court would be
paralyzed by a torrential caseload." Instead, the Court
should serve the role of taking "those cases that have
the potential to expound on the African Charter and make law
that would guide African states in developing legal and
political cultures that respect human rights."
On
the other hand, as APT has noted, as a consequence of the
"lack of a significant number of declarations
recognizing the Court's competence to examine individual
requests, its jurisdiction would basically be reduced to the
mere examination of inter-state communications." In
this regard, the experience of the Commission is not at all
promising; from 1996-2002, the Annual Activity Reports of
the Commission do not reveal the existence of a single
inter-state complaint. Restrictive individual access coupled
with a dearth of inter-state complaints would create an
institution that is dead-on-arrival.
Independent
judiciary
Amnesty
International reports that the Assembly of Heads of State
and Government of the African Union ("Assembly"),
at its Third Ordinary Session in July 2004, will be making a
number of decisions regarding the Court, including the
selection of its first eleven judges. The selection of
qualified judges and the guarantee of their independence are
crucial to the formation of a Court capable of rendering
objective opinions that will be respected by State Parties.
(see box)
The
importance of maintaining the independence of the judges is
codified in the Protocol. Article 17 provides several
principles to ensure judicial independence: it "shall
be fully ensured in accordance with international law";
no judge may hear a case in which he or she has previously
taken part; judges will enjoy the equivalent of diplomatic
immunity under international law; and judges may not be held
liable for decisions or opinions rendered. Article 18
further provides that the position of judge on the Court
"is incompatible with any activity that might interfere
with the independence or impartiality of such a judge or the
demands of the office, as determined in the Rules of
Procedure of the Court."
Funding
woes
One
of the most daunting obstacles to a functioning Court will
be ensuring adequate funding from the AU. The statements of
the African Commission in its Annual Activity Reports
provide an illustration of the seriousness of the funding
problems it faces.
The
African Commission relies extensively on outside donations
to carry out its activities. In its 14th Annual Activity
Report (covering 2000-2001), the Commission noted that
"[i]n order to complement the limited resources
allocated by the OAU, the Commission had to solicit
financial and material assistance". Again, in its 15th
Annual Activity Reports (covering 2001-2002), the Commission
noted that "[i]n order to complement the limited
resources allocated by the OAU, the Commission continues to
solicit for financial and material assistance."
Clearly,
the AU's resources will be stretched even more thinly with
the need to fund another major institution. It will
therefore be necessary for the international community to
continue giving financial support to the institutions of the
AU if the Court is to have an opportunity to function
properly and to achieve its potential.
'Complementarity'
The
foundational steps of the Court are all the more important
because it will face further challenges in defining its role
in the African human rights system and in creating viable
African human rights jurisprudence. As mandated in the
Protocol, the Court must find a means of operating in a
manner complementary to the Commission in the implementation
of the rights and protections of the Charter. While the
Protocol does not specifically describe the nature of the
complementary role the Court is to play, the contours of its
relationship with the Commission can be inferred from the
powers granted to it under the Protocol.
Most
significantly, the Court possesses enforcement powers that
the Commission has been sorely lacking. Under Article 27(1),
if the Court finds there has been a violation of a human or
peoples' right "it shall make appropriate orders to
remedy the violation, including the payment of fair
compensation or reparation." In addition, under Article
27(2), if the Court is confronted with a case of
"extreme gravity and urgency" it must issue
provisional measures it deems necessary to avoid
"irreparable harm to persons." While the Court
does not possess any independent powers to ensure compliance
with its judgments or provisional measures, Article 30
provides that "States parties to the present Protocol
undertake to comply with the judgment in any case to which
they are parties within the time stipulated by the Court and
to guarantee its execution." Furthermore, under Article
31, the Court is to specify "cases in which a State has
not complied with the Court's judgment" in its annual
report to the Assembly.
The
Court's enforcement power amounts to little more than
"naming and shaming". If
recalcitrant states fail to heed the judgments of the
Court, the ability of the Assembly to pressure states into
complying with Court judgments will be of critical
importance. This, however, is a flaw shared by other
regional courts.
Fortunately,
the Court does not have the same restrictive confidentiality
requirements faced by the African Commission. Under Article
59 of the Charter, "[a]ll measures taken within the
provisions… of the Charter shall remain confidential until
such a time as the [Assembly] shall otherwise decide."
The lack of such a prohibitive restriction on the Court
should result in much greater transparency in the
interpretation of the provisions of the Charter as well as
its decisions. Indeed, Article 29 of the Protocol provides
that judgments "shall be transmitted to the Member
States of the OAU [AU] and the Commission" as well as
the Council of Ministers.
The
African Court has the potential to serve as a means of
improving both the protective and interpretive mandates of
the African Commission, which should leave the Commission to
focus on its promotional mandate, including encouraging
States to incorporate rights guaranteed under the Charter
into their domestic legal systems. The Court's ability to
give transparent and legally binding judgments should make
it a more effective mechanism for protecting rights under
the African Charter than the African Commission has proved
to date, provided that issues such as judicial independence,
admissibility of individual complaints and funding are
addressed according to the spirit of the Court's Protocol.
|
Selection
Process |
|
THE
selection process of the Court's judges is detailed in
the Protocol. Article 11(1) provides that the judges
should be "elected in an individual capacity from
among jurists of high moral character and of
recognized practical, judicial or academic competence
and experience in the field of human and people's
rights". Under Article 12(1) each State Party can
propose up to three candidates, two of which must be
nationals of that State. Furthermore, Article 11(2)
mandates that no State Party may have more than one
judge on the Court. Article 12(2) requires State
Parties are to make an effort to ensure "adequate
gender representation in the nomination process."
State Parties are therefore obligated to ensure that
those nominated meet the requirements established in
Article 11(1), and that every effort is made to ensure
gender diversity on the Court bench.
Article
13 provides that State Parties submit candidates for
the Court to the Secretary-General of the OAU (now
AU), who in turn is to submit the full list of
candidates to the Assembly. Under Article 14, the
Assembly will then elect from that list, by secret
ballot, while ensuring that "there is
representation of the main regions of Africa and of
their principal legal traditions" and that
"there is adequate gender representation." |
|
|

|
CENTRAL
ASIA
Tajikistan:
A precarious balance
THE
complex political history of the nation of Tajikistan, the
smallest and poorest of the former Central Asian Republics,
is as rough as the geography of the Pamir Mountains
themselves. The mountainous landscape that dominates the
country has a history of bringing groups together and
pushing others apart. The country was shaken by a civil war
from 1992 to 1997, in which between 60,000 and 100,000
people were killed and the economy was crippled. A peace
agreement between the communist-led government and the
United Tajik Opposition was reached in 1997 and has enabled
the country to move toward its current state of stability.
However, the country remains largely in transition from an
authoritarian, highly-centralised Soviet state to a
democratic society and a market economy.
Sharing
a 1200-kilometre border with Afghanistan, Tajikistan has
been called on to play a new role in the "war against
terrorism", and has attracted more international
funding from the United States and Europe. However, the
international community ought to exercise caution because
although Tajikistan is currently enjoying internal
stability, the country is headed towards a crisis. President
Emomali Rakhmanov's increasing control over state politics,
coupled with Tajikistan's precarious economic situation,
have the potential to destabilise Tajikistan and create
larger problems for the entire region.
The
Role of the OHCHR
In
March 2003, the then Deputy High Commissioner for Human
Rights - now Acting High Commissioner - Mr. Bertrand
Ramcharan, visited Tajikistan as part of a Central Asian
tour. While in Tajikistan, Mr. Ramcharan addressed various
human rights issues, calling upon the government to submit
outstanding reports to UN treaty bodies, to enhance the
protection of human rights by law enforcement officials and
to provide further support for the OHCHR's regional project
for Central Asia. The larger goal of the official visit was
to "enhance dialogue and technical cooperation"
between Tajikistan and the OHCHR.
The
regional project itself is an attempt by the OHCHR to
further engage the five Central Asian republics by providing
greater access to education with respect to human rights,
democracy, civic education and the rule of law, establishing
national and regional dialogues and networks amongst policy
makers, experts, educators and the international community,
and to create an OHCHR Regional Advisor who can ensure a
"high level of human rights expertise…from a
non-adversarial source." The OHCHR's appointed advisor,
Professor Rein Mullerson, arrived in Kazakhstan on 9 March
2004.
Although
the Deputy High Commissioner's visit and the arrival of
Professor Mullerson represent steps taken by OHCHR to
enhance dialogue and cooperation with Tajikistan (and
Central Asia in general), it remains evident that the upper
echelons of the Tajik Government are more concerned with
perpetuating their own rule than ensuring the fundamental
human rights of their citizens.
Government
Shake-up
Opposition
groups and Rakhmanov's own political coalition are already
gearing up for the elections scheduled for 2005. Two
political parties, the Democratic Party and the Social
Democratic Party, formed an election bloc in late 2003 for
the upcoming elections. This new coalition is significant in
that it is the first new election bloc since the 1997 peace
accord. On 12 March 2004, four members of the Taraqqiyot
opposition party began a hunger strike to protest the
government's refusal to register their organisation, and a
recent attempt was made by a group of parliamentarians from
the Islamic Renaissance Party (IRP) and the Communist Party
to reform the laws that govern the country's electoral
process. Although these recent developments demonstrate the
desire for change within Tajikistan, political pluralism
seems distant when one considers Rakhmanov's recent
government shake-up, and the use of criminal prosecutions to
remove political rivals.
On
12 January 2004, the deputy leader of the IRP, Shamsiddin
Shamsiddinov, was sentenced to 16 years in prison for
illegally crossing the border, polygamy, and involvement
with an armed criminal group during the Tajik civil war.
Shamsiddinov's trial was completely closed, and fears have
been expressed that he has been subjected to torture since
being detained.
The
extradition of the former Interior Minster of Tajikistan,
Yakub Salimov, was approved by the Russian government on 24
February 2004. He has been charged with conspiring against
the President. The Russian government also detained
Khabibullo Nasrulloev, who was also formerly a member of the
Tajikistan government, in August 2003 on charges of murder
and crimes against the state. Nasrulloev and his son, who
was also arrested, have applied for political asylum in
Russia.
On
19 January 2004, Rakhmanov replaced the country's Deputy
Prime Minister and the Director of State Broadcasting and
Statistics, and on 26 January Rakhmanov reorganised the
Presidential Guard by removing political ally and guard
commander Lt. Gen. Ghaffor Mirzoyev. Rakhmanov has also
recently replaced the Head of the State Television and Radio
Committee, the new chief editor of the PDP party's
newspaper, Minbar-I Khalq, and the head of the state owned
Khovar news agency.
According
to the Tajik government, these new appointments represent an
attempt to fight and curtail government corruption. However,
the timing of Shamsiddinov's arrest and the government
shake-up raises questions regarding the true motivations
behind these actions. Control over broadcasting and news
sources represents control over information. Control over
the presidential guard solidifies presidential control and
tightens military action, reducing the risk of possible coup
attempts.
At
this point, one can only speculate over the possible
motivations behind the recent government shake-up. However,
the control it grants Rakhmanov over his power base and the
larger political process in the lead-up to the upcoming
elections is a cause for serious concern.
Crackdown
on Free Speech
Similar
concerns have been raised over the amount of control the
government exercises over the independent media. The
National Association of Independent Media of Tajikistan, an
independent Tajik organisation, recorded one hundred
possible media-related rights violations in 2003. In late
December 2003, the government stopped the distribution of
two papers - Nerui Sokhan and Ruzi Nav - known for their
critical coverage of the government. Although the government
closed both papers on the grounds of tax evasion, various
sources argue that the move was politically motivated. The
editors of the two papers see the government's actions as an
attempt to close or silence publications critical of the
President and state authorities. The government also blocked
access to an opposition news website prior to the elections
in 2003.
The
use of harassment and intimidation by state authorities to
force journalists' compliance is well documented, and
self-censorship is common. Those who cross the official line
face criminal charges and uncertain punishment. In October
2002, three young journalists were temporarily conscripted
into the army's communication department for their role in
producing a documentary critical of forced army conscription
at a journalist workshop.
The
main problem with respect to media freedom is the
government's use of official means (i.e. taxation,
registration, etc.) to suppress those who are outspoken. A
significant example of this is the government's use of
official registration requirements to obstruct the
registration of the country's first independent radio
station, Asia Plus. The station had to wait four years until
their application for registration was officially approved.
Another example is the state's harassment of the newspaper
Nerui Sokhan for not providing details of where the paper
was printed. Papers that do not use state-run printing
houses face an uphill battle, and new legislation passed in
November 2003 makes newspapers liable for printing any
information considered to harm national security.
Unfortunately, such ambiguous legislation opens the door for
abuse in a country like Tajikistan.
Precarious
Balance
It
appears that as long as the country remains politically
stable in the short term, Rakhmanov's treatment of, and
control over, political opposition groups will remain
largely overlooked by the international community. The lack
of political and economic reform within Tajikistan is driven
in part by the international community's reliance and
acceptance of short-term stability. Such reliance, through
accepting President Rakhmanov's control over state politics
and Tajikistan's economic dependence in the short term, has
the potential to further destabilise Tajikistan.
There
is no doubt that the balance of stability and reform is a
delicate process, one that Tajikistan and the international
community should approach with caution. However, while the
international community assists Tajikistan in its transition
from humanitarian-based assistance to larger-scale
development, it should pay close attention to the political
maneuvering of Rakhmanov as Tajikistan approaches its next
election. Future aid to the Rakhmanov regime should be tied
to genuine reform and serious human rights improvements. It
is evident that stability remains a double-edged sword in
Tajikistan, but silence by the international community
should not be an option.
|
Rakhmanov’s
Dominance |
|
President
Rakhmanov's domination of state politics, and the
inaccessibility of the political process to opposition
parties further complicate Tajikistan's political
future. The President has extended his term of office
twice through constitutional referendums that have
both been recognised by the US State Department and
the Organization for Security and Cooperation in
Europe as neither free nor fair. The first referendum
(1999) extended Rakhmanov's term of office from five
to seven years. The second (June 2003) made it
possible for him to stay in office for two additional
seven-year terms, opening the door for him to stay in
office until 2020. Critics argue that the recent
referendum, couched amongst 56 other constitutional
amendments, could be used as a stepping-stone for
Rakhmanov to install himself as president for life.
Voters who approved the recent referendum (supposedly
by 93.13 percent) also voted to give away their
constitutional rights to state education and
healthcare, calling the validity of the referendum
even further into question.
Of
further concern is the inability of political
opponents to run against the President. A new
requirement, as stipulated by the most recent
referendum, bars political opposition opponents living
abroad from running in the next election. The
amendment in question makes it illegal for anyone who
has not lived within Tajikistan for the past 10 years
to run for president. Those who have lived in the
country and wish to run against Rakhmanov face
additional hurdles in having to collect signatures
from five percent of the electorate. |
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
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’
|
INTERVIEW |
|
Katarina
Tomasevski |
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.
|
SPECIAL
PROCEDURES - Mandates to be renewed in 2004 |
|
Mercenaries
(Special Rapporteur);
Implementation
of the WCAR (Working group);
Right
to development (Working group);
Right
to education (Special Rapporteur);
Extreme
poverty (independent expert);
Toxic
wastes (Special Rapporteur);
Summary
executions (Special Rapporteur);
|
Torture
(Special Rapporteur);
Religious
Intolerance (Special Rapporteur);
Sale
of children (Special Rapporteur);
Internally
displaced persons (Special Representative);
Indigenous
Peoples (Special Rapporteur);
All
country mandates, except Palestine, Cambodia, Liberia, Cuba.
|
UN-HABITAT
and others are not speaking out strongly enough against forced evictions, says
SR on right to housing
RESOLUTION
2000/9 of the Commission on Human Rights (CHR) established
the mandate of the Special Rapporteur (SR) on the right to
adequate housing as a component of the right to an adequate
standard of living. Since his appointment as SR in 2000, MILOON
KOTHARI, has examined the right to adequate housing in
light of an indivisibility of rights-based perspective - the
interrelatedness between the right to housing and the right
to food, the right to health, the right to sanitation, and
others.
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
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
|
INTERVIEW |
|
Leila
Zerrougui |
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.
PALESTINE
The
General Assembly has asked the International Court of Justice for an advisory
opinion on the legality of the separation barrier being constructed by Israel.
An analysis of the legal issues...
IN
June 2002, Israel began construction on what has been
variably termed a wall or fence under the auspices of
"a defensive measure, designed to block the passage of
terrorists, weapons and explosives into the State of Israel
…" The General Assembly has asked the International
Court of Justice (ICJ) for an advisory opinion on the
legality of the separation barrier, as it has been described
by the Secretary-General. This article presents the academic
analyses that have been offered on the legal issues that
might be addressed by the ICJ. In particular, this article
will put forward the arguments articulated by the Harvard
Program on Humanitarian Policy and Conflict Research (HPCR)
and the Oxford Public Interest Lawyers (OXPIL).
Characteristics
of the separation barrier
As
currently planned, only 11 percent of the separation barrier
will run along the "Green Line" (the 1949
Armistice Line between Israel and Jordan; the
internationally recognized border between Israel and the
West Bank). HPCR, reports that UN, Israeli and Palestinian
sources estimate that approximately 12,000 Palestinians are
currently isolated between the separation barrier and Green
Line. According to HPCR, the planned separation barrier
complex will result in the isolation of an estimated 128,500
Palestinians "from the rest of the West Bank and from
each other in enclaves and double-walled areas on the
eastern side of the barrier."
OXPIL,
citing UN sources, states that 54 Israeli settlements, with
a population of 142,000, will fall between the Green Line
and the completed separation barrier.
Legal
status of the occupied territories
The
West Bank and Gaza Strip have not had their final legal
status determined. During the formation of the Israeli state
there was frequent violence under the British Mandate. The
Security Council (SC) called for a ceasefire in 1948.
Armistice agreements were signed between Israel and
neighbouring countries in 1949, establishing what is now
recognized as the legal boundary of the state of Israel.
During
the 1967 Arab-Israeli War, Israel occupied the West Bank and
the Gaza Strip. The near-consensus is that the West Bank and
Gaza Strip are Occupied Palestinian Territory (OPT) and fall
under the international legal regime governing legal
occupation. Israel's presence in the West Bank and Gaza
Strip is recognized as "occupation" by SC
Resolution 242 (1967). Israel does not acknowledge the de
jure applicability of the Fourth Geneva Convention (the
'Civilians Convention'), because it applies only to the
"occupation of the territory of a High Contracting
Party"; Israel has never recognized the pre-1967
sovereignty of Jordan and Egypt over those territories.
Therefore, it has argued that formal recognition of the
Fourth Geneva Convention would imply recognition of the
former administration's sovereignty. This position has been
severely criticized by the UN, International Committee of
the Red Cross, states and scholars.
The
balance of legal authority is that the West Bank constitutes
territory occupied by Israel and therefore the provisions of
the Fourth Geneva Convention are applicable.
International
humanitarian law issues
Military
occupation is governed by the Hague Regulations of 1907
(Hague Regulations), the Fourth Geneva Convention of 1939 (GC(IV)),
the First Alternative Protocol to the Geneva Conventions
(API) and customary international law. The Hague Regulations
state that "territory is considered occupied when it is
actually placed under the authority of the hostile
army". As Israel exercises effective military control
over the OPT it is subject to the above-mentioned treaties.
Under
Article 27 of GC(IV) Israel "may take such measures of
control and security in regard to protected persons as may
be necessary as a result of the war" within the OPT.
Under the ICRC Official Commentary, such measures may
include change of residence without notice and restriction
of movement. Under Article 64 of GC(IV), Israel may only
subject the population of the OPT to measures necessary to
ensure Israel's ability to meet its obligations under GC(IV),
and to ensure the security of its armed forces and
administration within the OPT. According to the HPCR the
"state of necessity refers only to situations that are
within the occupied territory, and facing the occupying
power in the course of occupation."
As
the HPCR report describes, Israel's position is that the
separation barrier, and the consequent seizure of
Palestinian property, restriction on Palestinian movement
and other negative effects on the Palestinian population,
are justified by this concept of military necessity from
GC(IV). Israel states that it is erecting the separation
barrier in response to the existence and threat of
Palestinian suicide-bomber attacks, and it interprets
military necessity to include not only the military needs of
the occupation forces, but also the security of both
settlers in the OPT and the state of Israel.
Israel
recognizes some of the harms caused to the Palestinian
population by the separation barrier, but argues that,
taking into account the threat of suicide-bombers, those
harms fall within the proportionality requirements of
international humanitarian law. In addition, Israel applies
the international humanitarian law governing the conduct of
hostilities, because it asserts there is an existing
situation of armed conflict.
OXPIL
argues that the separation barrier is neither necessary nor
proportionate under international humanitarian law, because
Israel fails to account for the Palestinians that will be on
the Israeli side of the barrier and it has not demonstrated
that "less intrusive or restrictive measures would have
failed to effectively address its security concerns."
HPCR's
view, contrary to the Israeli position, is that the
situation is not an armed conflict, but remains a case of
civil disturbance under the law of occupation. Therefore,
the occupying power, Israel, cannot use exceptions
permissible under the rules pertaining to the conduct of
armed hostilities.
In
this context, HPCR argue that the issue of military
necessity only arises for those segments of the barrier that
enter the West Bank. HPCR reports that the Palestinian
Liberation Organization (PLO), international human rights
organizations and other international agencies argue that
the harm caused to Palestinians in the OPT cannot be
justified under the law of occupation, because those
resultant harms make the separation barrier a
disproportionate measure.
The
Israeli violations of international humanitarian law alleged
by HPCR and OXPIL are: the disproportionate restrictions on
the movement of Palestinians (Article 27 of GC(IV)), failure
of the duty to ensure food and medical supplies (Article 55
of GC(IV)), requisition or confiscation of private or public
property (Article 46 of the Hague Regulations, Article 53 of
GC(IV)), subjection to collective punishment (Article 50 of
the Hague Regulations, Article 33 of GC(IV)), and failure to
fulfil the general welfare of the civilian population
(Article 43 of the Hague Regulations).
International
human rights law issues
The
separation barrier must also be considered in light of
Israel's international human rights obligations. Israel is a
party to the six major human rights treaties (ICCPR, ICESCR,
CEDAW, CERD, CAT, CRC). Israel denies the applicability of
the International Covenant on Civil and Political Rights (ICCPR)
due to the recognition of a state of armed conflict, to
which it considers the ICCPR does not apply. However, the
near consensus view, as articulated by OXPIL, is that Israel
is bound by these treaties whenever it exercises effective
control over territory, including the OPT. Israel has not
derogated from its human rights obligations under these
treaties.
Thus,
generally, according to OXPIL, limitations on the
obligations under these treaties based upon national
security grounds "must be strictly necessary and
proportionate to meet the security threat".
Under
individual treaties the scope of limitations may be
narrower. For instance, limitations under the ICESCR are
permissible only when proscribed by law, compatible with the
nature of the rights and "solely for the purpose of
promoting the general welfare in a democratic society"
(Article 4). Under the ICCPR, limitations must meet the
legitimate aims of "protection of public security,
order, health or public morality, and securing the rights
and freedoms of others".
OXPIL
argues that there are numerous human rights treaty
provisions that the ICJ may test for legality and concludes
that the separation barrier constitutes a violation of the
ICCPR right to freedom of movement (Art 12); the right to be
free from arbitrary or unlawful interference of privacy,
family and home (Art 17); freedom of peaceful assembly (Art
21); rights of minorities (Art 27); and rights of due
process (Art 14).
OXPIL
also argues that limitations on Palestinian rights under
ICESCR should be scrutinised more rigorously because they
lack full democratic rights. OXPIL states there is strong
evidence that the barrier "violates Palestinian rights
to: work and make a living (Art 6); an adequate standard of
living, food and housing (Art 11); physical and mental
health (Art 12); education (Art 13); and participation in
cultural life (Art 15).
The
OXPIL study, however, only presents a limited factual
analysis of the scope of Israel's security threat and
determination of whether the barrier is within the
permissible scope of limitations on human rights treaty
obligations. The ICJ heard oral submissions from Palestine,
interested states and other organisations, although Israel
itself chose not to make a submission.
Whether
the building of the separation barrier constitutes a
violation of Israel's obligations under international
humanitarian law and/or international human rights law
remains for the ICJ to decide.
Education:
China fails to make the grade
IN
November 2002, the Chinese government, under increasing
pressure to accept scrutiny of its human rights situation,
issued an invitation to the UN Special Rapporteur on the
right to education to visit the country, the first
rapporteur to be invited in nearly ten years.
Beijing
evidently believed it was playing safe by allowing the
investigation of a 'soft' issue like education. It also
believed it would be spared any major criticism. After all,
China has been a vociferous champion of the primacy of
economic, social and cultural rights.
It
had clearly picked the wrong investigator.
At
the end of her two-week visit to the country, Special
Rapporteur Katarina Tomasevski meticulously demolished every
myth about China's upholding of the right to education. The
country was spending only two percent of its gross domestic
product on education, as against the six percent recommended
by the United Nations, Ms Tomasevski said during a press
conference called to report her findings. It was failing to
provide education to children of migrant workers, barred
children from receiving religious education, and covered
only 53 percent of school funding, compelling parents to pay
the rest.
Indignant
rejoinders have already been put out by Chinese officials,
claiming that the special rapporteur under-reported the
budgetary spending figure. It is important to note, however,
that no spokesperson has explicitly disputed the fact of the
budgetary allocation for education being far less than that
recommended by the UN.
Ms
Tomasevski's findings are also a pointer to the broader
areas of concern regarding human rights in China - issues
that China does its best to conceal, and which the
international community appears increasingly loath to
address.
China's
record of compliance with international law is abysmal, even
in areas that Beijing supposedly holds dear. On the right to
education for example, as Ms Tomasevski points out, Chinese
law does not conform to international standards. For
starters, China has not ratified the International Covenant
on Civil and Political Rights (ICCPR). Provisions regarding
parental freedom of choice for the education of their
children are included in the Convention on the Rights of the
Child (CRC), which China has ratified. Ratification of a
convention requires the incorporation of the convention's
provisions into domestic law. However, the special
rapporteur found, the CRC provisions are not reflected in
China's domestic law.
Chinese
legislation defines education as an individual duty and also
affirms the "right to receive education". However,
the freedom to impart education is not recognised. China has
entered a reservation to this crucial provision in the
International Covenant on Economic, Social and Cultural
Rights (ICESCR). The International Labour Organisation (ILO)
Convention No. 87, concerning freedom of association, has
not been ratified. The lack of freedom of association
undoubtedly has an impact on all workers, including
teachers. The All-China Federation of Trade Unions (ACFTU)
enjoys a legal monopoly of all trade union activities in the
country and is not known to have taken up any significant
cases of workers' rights violations. Independent trade
unions are banned. However, in the great race to attract
foreign investment, these issues are brushed under the
carpet. And few, if any, multinational companies, or foreign
governments, choose to look under the carpet.
Ms
Tomasevski observed that during the two weeks she spent
interviewing government officials, not one person she met
appeared to have an understanding of the country's
obligations under the international human rights treaties it
had signed. The general view, she found, was that schooling,
in itself, constituted the right to education even if it did
not conform to international standards. Thus, the ban on of
religious education is not considered a violation of the
right to education. This is also a strong indicator of the
freedoms - or the lack of them - enjoyed by China's
religious minorities. A visit to areas where religious
minorities are concentrated might have put the spotlight on
these concerns. However, the special rapporteur was
compelled to restrict her visit to Beijing on account of
resource constraints, and, significantly, report-length
constraints - UN rules limit reports to a maximum of 20
pages.
Not
all violations are hard to discern, even by officials
ignorant of international law. For example, the denial of
education to the children of migrant workers falls foul of
international law as well as Chinese law. The law provides
for nine years of compulsory education. But large numbers of
migrant children are bereft of this right. This deprivation
is intrinsically linked to freedom of movement, which is
severely restricted in China. Freedom of movement is based
on a system of registration at birth. Any change of
residence requires authorisation. Thus undocumented or
unauthorised migrants - who may have been unable to go
through the long and costly permit process - are denied
essential services, including education, when they migrate,
chiefly to urban areas. Furthermore, according to the
special rapporteur, migrant children who do manage to be
allowed into school are required to pay a "temporary
schooling fee" of 20,000 yuan, a sum, the special
rapporteur points out, is beyond the reach of most migrants.
China
is obligated to remove all financial obstacles to the
universalisation of compulsory education. According to the
special rapporteur, the history of the right to education
has shown that education cannot be made compulsory unless it
is free. However, budgetary funds for education in China
have been inadequate, with the result that public schools
charge fees to make up for the deficit. The World Bank has
confirmed that the main reason for drop-outs or
non-enrolment is known to be "the high out-of-pocket
costs of education". The special rapporteur found that
no statistics are available on the kinds of fees collected,
but that these are known to range from exam-paper fees and
reading room permit charges to homework-correcting fees. A
tragic example of the impact of the lack of funding for
education was the 42 deaths of schoolchildren and teachers
in March 2001 when their school blew up. The children had
been producing firecrackers to compensate for the shortage
of funds for their schooling.
Further,
since education is considered more of an obligation than a
right in China, local authorities, under pressure to show
good enrolment figures, often resort to the law on
compulsory education to force parents to enrol their
children. The special rapporteur learnt of a man in Lin Yi
(Shan Dong province) who committed a robbery in April 2001
because he was unable to pay school fees for his children.
The 30 yuan he robbed, the special rapporteur found, got him
three years in prison. His children were left without the
schooling which should have been free to begin with.
As
pointed out earlier, the right to education is more than
mere enrolment in schools. Chinese authorities however
provide statistics that only monitor enrolment, not
attendance or completion of school. This is evident from
Chinese government proclamations that purport to showcase
achievements in the area of "human rights" (see
for example, the website of the Chinese embassy in Australia
- http://www.chinaembassy.org.au/eng/36534.html). Nor do the
statistics monitor the quality of teaching and learning.
Official figures place the number of illiterates at 85
million, which experts claim is the result of the rising
costs of education. Girls are estimated to form the majority
of the "new illiterates", being traditionally less
valued than boys in Chinese society and therefore more
vulnerable to any increase in education-related expenditure.
Problems
such as these prove once again the impossibility of
delinking economic, social and cultural rights such as,
inter alia, food, education and health from civil and
political rights such as freedom of association, right to
information and the right against discrimination. They
indicate the need to ensure respect for the entire array of
rights and compliance with the laws that guarantee them. For
example, development - another issue repeatedly flogged by
Beijing to neutralise the pressure to respect
'Western-oriented' civil and political rights - cannot be
brought about in the absence of public funding for key
services and in the discriminatory provision of such
services. Similarly, the right to health is greatly hampered
in the absence of the right to information - this was proved
eminently in the case of SARS, which led to an unprecedented
official apology by Beijing for having under-reported the
figures. Vice-Premier Wu Yi said in July 2003 that the fight
against SARS had "exposed flaws in the country's public
health system, lack of awareness about public health
emergencies, inadequate disease control systems, laxity of
supervision of the implementation of public health laws and
weakness in rural public health work". Finally,
universal education cannot be hoped to be achieved if rural
and migrant children are discriminated against and if gender
disparities are not addressed.
While
Beijing repeatedly calls on developed countries to increased
development assistance, it has failed to demonstrate a
domestic commitment to providing public services. The rate
of economic growth averaged 7-8 percent in the 1990s. This
was not reflected in increased public spending for key
public services. Budgetary allocations are skewed in favour
of military expenditure rather than education.
The
findings of the special rapporteur on education provide a
snapshot of the overall human rights ambience in China.
While a deeper scrutiny would be required to reveal the
entire extent of China's actual compliance with
international human rights norms, the current findings are a
useful pointer. But the international community has shown a
singular reluctance to confront Beijing with these issues.
For the past two years, at annual sessions of the Commission
of Human Rights (CHR), China has got away without censure.
During the CHR's 58th session, the United States, which has
traditionally brought resolutions condemning China's human
rights record, was not a voting member. It managed to pull
plenty of strings on other issues, using friendly countries
that were members of the CHR, but claimed that none of its
"friends and allies" had agreed to introduce a
China resolution. Nor did the European Union take the
initiative. In 2003, the United States was back in the CHR
as a member. But no China resolution emerged. The EU, which
brings the highest number of country resolutions at the CHR,
evidently suffered not from resolution fatigue but the
exigencies of realpolitik. It decided that it would not
introduce a resolution, but if a draft resolution was
tabled, it would "study its contents carefully"
and if put to vote, the EU would "consider favourably
voting for its adoption".
The
signals however are unmistakable. The message to Beijing is
that its status as an economic powerhouse status will
effectively shield it from any penetrating human rights
scrutiny. But China - and the international community - must
realise that development and prosperity, which the country
undoubtedly deserves, cannot be realised in the absence of
basic human rights. If anything, the denial of these rights
is more likely to impair China's economic project.
HUMAN
RIGHTS DEFENDERS
MARY
LAWLOR
FIVE
years ago on 9 December 1998, the UN Declaration on Human
Rights Defenders was adopted by consensus by the governments
of the world. They made a commitment to work to protect
human rights defenders but sadly that commitment has not
been met.
Human
rights defenders often face harassment, detention, torture,
defamation, suspension from their employment, denial of
freedom of movement and difficulty in obtaining legal
recognition for their associations. In some countries they
are killed or "disappeared." Ensuring the
protection of human rights defenders is crucial to the
development of democratic processes and institutions, ending
impunity and the promotion and protection of human rights.
At
the 2003 session of the Commission on Human Rights, the
European Union (EU) articulated the importance it attaches
to: the role of human rights defenders, their "full
support" for the work of the UN Special Representative
Ms. Hina Jilani, the necessity for states to protect human
rights defenders at risk, and their belief "that the
contextual space in which defenders operate is of the utmost
importance and that international and regional efforts in
the area of democratisation should include an emphasis on
the role of human rights defenders."
However,
as yet, there is no comprehensive policy on human rights
defenders within the EU. More focussed attention is now
needed on how to support and protect human rights defenders,
and what practical steps the EU can take to have an impact
in this area.
Front
Line successfully lobbied the Irish Government to make the
development of such a policy one of their priorities during
their six-month presidency of the EU, which started in
January 2004. Following consultation with human rights
defenders and international organisations we have proposed
the following key points for inclusion in the policy:
(1
(1) the EU should develop and publish a clear,
transparent and objective policy on human rights defenders,
which should be consistently applied in all areas of foreign
policy. It should incorporate in its policy special measures
that address the specific violations, risks and
vulnerabilities that women face not only as human rights
defenders, but also because of their gender and the
woman-specific issues they work for. It should ensure the
rights of human rights defenders are respected in
counter-terrorism policies in a manner that upholds their
human rights obligations
(2) the EU should establish a Human Rights Defenders unit
within the EU Council of Ministers to coordinate the
implementation of the EU policy on defenders. Both the Inter
American Commission on Human Rights and the African
Commission on Human and People's Rights now have a focal
point on human rights defenders. In this regard the EU
should support the focal point in the African Commission in
order to strengthen its capacity. This could take the form
of some seed money, funding a staff member and logistical
advice.
3)
(3) The EU should make human rights defenders a
thematic priority under the European Initiative for
Democracy and Human Rights, which should focus on the
protection and security requirements of human rights
defenders in order to allow them carry out their legitimate
work. There should be a separate budget line dedicated to
the needs of human rights defenders.
)
(4) The EU should mainstream the issue of human
rights defenders across the political and development desks
of foreign ministries and the EU so that it has coherence
and importance, and it should integrate the issue of human
rights defenders consistently in EU agendas and country
resolutions.
)
(5) The EU should send specific missions to countries
where human rights defenders are in grave danger and, where
appropriate, publicly support their work. They should
challenge the use or influence of the media by governments
that damages the credibility of human rights defenders and
sets them up for arrest and possible conviction. When
Foreign Ministers, or their representatives, are making such
country visits they should include meetings with human
rights defenders where possible and raise specific cases
directly with their hosts.
)
(6) The EU should develop a handbook in consultation
with human rights defenders on the role of embassies in
their protection. This should set out the practical actions
embassy staff should take. Embassy staff should:
-
Monitor
safety of human rights defenders at risk and report
regularly to foreign ministries
-
take
bilateral and multilateral action quickly in the form of
appeals and demarches
-
invite
human rights defenders in danger into embassies for
meetings for information sharing
-
visit
them in their offices and areas of work to help overcome
their isolation
-
transmit
information regarding needs of human rights defenders in
danger to relevant international organisations who may
be able to assist
-
Attend
press conferences organised by human rights defenders
and their organisations
-
Issue
public statements in support of the rights of human
rights defenders who are under unjust verbal, physical
or administrative attack by the authorities or other
parties
-
Observe
trials of human rights defenders
-
Ensure
that the integrity or security of human rights defenders
are not undermined by unfounded allegations or
statements
(
(7) The EU should facilitate national and
international meetings of human rights defenders in order to
build networks, strengthen their capacity to do their work
and allow them a break.
(8)
The EU should allocate and lobby for sufficient
resources to be given to the UN Special Representative on
Human Rights Defenders in order to allow her carry out her
mandate effectively, collaborate with other special
procedures and have a standing invitation from all states to
make country visits
(9)
The EU should facilitate short-term breaks and
Rehabilitation for Human Rights Defenders at risk and also
develop exit strategies for Human Rights Defenders facing
death threats.
is
hoped that EU guidelines on Human Rights Defenders will be
adopted by the EU by the end of June 2004.
Mary
Lawlor is Director and founder of Front Line, a Dublin-based
NGO.
FEEDBACK
THE
AFTERMATH OF THE DEBATE ON CUBA
AS
the smoke and hot air settles after the Item 9 debate some
conclusions can be drawn:
Ms
Christine Chanet, the Special Representative of the High
Commissioner, clearly failed to deliver in her report. Her
omission of any mention of the terrorist attacks against
Cuba and its civilian population substantially flawed her
approach.
While
she did acknowledge the detrimental effects on human rights
of the 40 year old US embargo surprisingly in her
recommendations she makes no mention of it. We did not
expect Ms. Chanet to charm the Cuban delegation but her
allegation that President Fidel Castro was using
"tension" with the US to implant political
repression at home only further aggravated things and makes
future cooperation, so vital to achieving results under this
procedure, even more remote.
The
Special Representative did however say that Cuba was
cooperating with the special thematic procedures. Would
not those procedures on Arbitrary Detention and
Summary Executions, for example, be more productive for
addressing the real human rights concerns in Cuba such as
the crackdown on dissidents and the application of the death
penalty? Perhaps the release of dissidents could be then
secured and real progress made.
The
inclusion of Cuba under Item 9 really does not have any
further substance. There is no mention in the Special
Representatives reports of "a pattern of flagrant and
systematic human rights violations" which would
substantiate its inclusion. Cuba fortunately does not have
the drama of torture, enforced disappearances, or widespread
killings unlike so many other countries.
The
continuing public examination of Cuba only distorts the
whole debate under Item 9 and provides a very convenient
rallying point for all other "named and shamed"
states to discredit the procedure itself as discriminatory.
It also takes up an awful lot of the CHR’s most precious
commodity - time - and with no positive outcome.
PATRICIO
RICE
FEDEFAM
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Baptiste
Anguis
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Stephen
Kostas
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Tracy
Reynolds
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Loredana
Brezan
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Charles
Lor
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Anna
Schenk
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Marna
Carroll
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Antoine
Martel
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Ipshita
Sengupta
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Matthew
Cohen
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Rineeta
Naik
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Patrick
Sheldon
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Pradip
Ghimire
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Ravi
Nair
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Gareth
Sweeney
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Paul
Green
|
Trupati
Patel
|
Jane
Wysocki
|
|
Steve
Kosakoff
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Don
Rassler
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Adrien-Claude
Zoller
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