| "This is a time when your mission
to promote and protect human rights in the widest sense
is more important than ever, your responsibility to act
more urgent."
From UN Secretary-General Kofi Annan’s address to
the 59th session of the Commission on Human Rights, 24
April 2003.
|
Promotion and protection of human rights are among the key
functions of the Commission on Human Rights (the Commission)
and yet there are many human rights situations which the Commissions
simply fails to address. There have even been times when the
Commission has adopted ‘motions to take no action’
to avoid consideration of human rights violations. (1) And
even where the Commission has acted it has too often demonstrated
its inability or unwillingness to monitor implementation of
its own recommendations. At its 60th session Amnesty International
(AI) is calling on member states to build on the momentum
created by the Secretary-General’s reform process(2)
as well as the ongoing review of the working methods of the
Commission(3) to consider fundamental reform of the working
methods of the Commission to enable it to take effective and
concrete action to end grave violations of human rights wherever
these occur.
AI is also presenting a number of recommendations to the Commission
in respect of issues on the Commission’s agenda, including
in relation to ending violence against women; abolition of
the death penalty; human rights and counter-terrorism; human
rights and sexual orientation; human rights of refugees, asylum-seekers,
and other migrants and non-nationals; and on the Human Rights
Norms for Businesses. In the area of standard-setting AI is
making recommendations in relation to the draft binding instrument
on enforced disappearance, on an optional protocol to the
International Covenant on Economic, Social and Cultural Rights,
and the "Basic principles and guidelines on the right
to a remedy and reparation for victims of violations of international
human rights and humanitarian law".
With regard to human rights violations in specific countries,
AI presents brief regional overviews followed by individual
sections on the 18 countries currently on the Commission’s
agenda: Afghanistan, Belarus, Burundi, Cambodia, Chad, Colombia,
Cuba, Democratic Republic of Congo, Haiti, Iraq, Israel and
the Occupied Territories, Liberia, Myanmar, People’s
Democratic Republic of Korea, Sierra Leone, Somalia, Timor-Leste,
and Turkmenistan. In providing this information AI wishes
to stress that its concerns about the human rights situation
in individual countries go far beyond these 18 countries as
the organization’s annual report and other reports will
testify.(4) However, it is AI’s hope that the information
provided will assist the Commission in taking concrete action
to end human rights violations wherever these occur.
"If the first decade emphasized
standard-setting and awareness-raising, the second decade
must focus on effective implementation and the development
of innovative strategies to ensure that the prohibition
against violence is a tangible reality for the world’s
women."
Radhika Coomaraswamy
Special Rapporteur on violence against women, its causes
and consequences, from 1994-2003
|
In her report(5) to the 59th session of the Commission, Ms Coomaraswamy
noted that in the struggle to eradicate violence against women
"the greatest achievements ha[d] been in awareness-raising
and standard-setting".(6) She further noted, however, that
"despite these successes [..] very little has changed in
the lives of most women"; rather that "for the vast
majority violence against women remains a taboo issue, invisible
in society and a shameful fact of life". She urges that
governments and the international community now focus on implementation
of existing standards, laws and measures as the main priority
in the struggle to eradicate violence against women. In particular
she recommends that governments:
· Ratify all instruments for the protection and promotion of
the rights of women, including the Rome Statute of the International
Criminal Court (Rome Statute) and the Convention on the Elimination
of All Forms of Discrimination against Women (Women’s
Convention) and its Optional Protocol;
· Exercise due diligence including to prevent, investigate and
punish all acts of violence against women, to take measures
to empower women and strengthen their economic independence;
and to enact, reinforce or amend domestic legislation to enhance
the protection of victims of violence;
· Take or strengthen measures to address the root causes of
VAW, including poverty, under-development and lack of equal
opportunity;
· Support women’s participation in peace processes, in
accordance with Security Council resolution 1325 (2000), without
threat of further violence.(7)
Action by the Commission to eradicate violence against women
It was the Commission’s very first task, meeting in 1947,
to authorize a committee to begin drafting the Universal Declaration
of Human Rights (UDHR) - the foundation stone of the human rights
movement.(8) The UDHR proclaims that all human beings are equally
entitled to civil, political, economic, social and cultural
rights, including the right of women to live their lives free
from violence. The Commission continues to play an important
role in seeking to realize this promise.
In 1994, the Commission established the mandate of the Special
Rapporteur on violence against women, its causes and consequences(9),
and each year since then the Commission has adopted an annual
resolution on "Elimination of violence against women"
through which the Commission calls on governments to ratify
the Women’s Convention and its Optional Protocol; exercise
their duty to promote and protect the human rights of women
and girls; to refrain from invoking custom, tradition, religion
or culture as an excuse for violence against women; to address
violence against women in the context of armed conflict; and
to establish national mechanisms for monitoring and evaluating
measures taken to eliminate violence against women. However,
the challenge for the Commission remains to support member states
in taking decisive and concrete steps to implement women’s
right not to suffer violence.
Amnesty International’s campaign to stop violence against
women
It is with the goal of implementation in mind that AI will launch
a campaign to stop violence against women in March 2004, in
connection with International Women’s Day. Through this
campaign the organization is calling on all governments as well
as private actors, on institutions as well as individuals, to
take immediate steps to put a stop to violence against women
and to redress the suffering it causes. Violence against women
is neither legal nor acceptable and must never be tolerated
or justified.
AI’s campaign on stopping violence
against women will aim to secure:
· The abolition of laws that support impunity for violence
against women and laws that discriminate against women.
· The enactment and implementation of effective laws
and practices to protect women from violence in conflict
and post-conflict situations, and to ensure that impunity
is ended for combatants that commit violence against women,
and their commanders.
· The individual and collective accountability of states
for their existing obligations under international law
to prevent, investigate, punish and redress all acts of
violence against women whether in peacetime or armed conflict.
· Effective action to stop violence at the community
level by local governments and civil society, including
religious bodies, traditional and informal authorities. |
The campaign will focus on violence against women in the family
and armed conflict. However, during this campaign, AI will establish
gender equality at the core of its human rights research and
advocacy so that acts of violence against women in the full
range of contexts are addressed. Within the framework of international
human rights law AI will campaign to hold governments to their
commitments and urge them to effectively implement laws to protect
and respect women’s human rights in times of peace as
well as conflict. Throughout the campaign, AI will show that
the right of women to be free from violence is integral to the
UDHR -- until violence against women is eradicated, the promise
of the UDHR remains unfulfilled.
Violence against women in the family
The Special Rapporteur on violence against women has stated:
"[v]iolence against women in general, and domestic violence
in particular, serve as essential components in societies which
oppress women, since violence against women not only derives
from but also sustains the dominant gender stereotype and is
used to control women in the one space traditionally dominated
by women, the home."(10) Violence is both rooted in discrimination
and serves to reinforce discrimination, preventing women from
exercising their rights and freedoms on a basis of equality
with men. The Declaration on the Elimination of Violence against
Women(11) states that violence against women is a "manifestation
of historically unequal power relations between men and women,
and that this is "one of the crucial social mechanisms
by which women are forced into a subordinate position compared
with men".
Violence in the family includes battering by intimate partners,
sexual abuse of female children in the household, dowry-related
violence, marital rape and female genital mutilation and other
traditional practices harmful to women. Abuse of domestic workers
-- including involuntary confinement, physical brutality, slavery-like
conditions and sexual assault -- can also be considered in this
category.
In some countries, personal status laws may condone violence
against women. Some obedience and modesty laws require a wife’s
submission to her husband and give the husband an explicit or
implicit right to discipline his wife, and in some countries
women are considered to be the property of their fathers or
husbands. In parts of Kenya, for example, on the death of her
husband, a woman is likely to be "inherited" by his
brother or a close relative.
Impunity for violence against women is complex - many women
are unwilling to pursue intimate partners through the legal
system because of emotional attachments and the fear of losing
their homes or the custody of their children. Women are also
discouraged from seeking justice through the courts because
too often criminal justice systems hold them responsible for
violence, asserting that it was "incited" or "instigated"
by the woman’s own behaviour. Since women are often denied
equal access to economic and social rights, many do not have
the financial resources to access the legal system.
There are flaws in the legal framework of some countries which
contribute to impunity. For example, even though constitutional
provisions may affirm women’s right to a life free from
violence, the definition may not cover all forms of violence
against all women. Among the forms most frequently absent from
legislative prohibition is sexual harassment in the workplace
or in school. In some countries laws allow so-called "honour
crimes" or allow a defence of honour to mitigate criminal
penalties, putting the right of the family to defend its honour
ahead of the rights of individuals in the family.
In some countries, family and customary law covering inheritance,
property rights, marriage, divorce and custody deny women the
same rights as men. By denying women their economic, social
and cultural rights these laws make it harder - in many cases,
impossible - for women to escape situations of violence.(12)
Violence in armed conflict
Armed conflict leads to an increase in all forms of violence,
including genocide, rape and other forms of sexual violence.(13)
Violence against women is often used as a weapon of war, in
order to dehumanize the women themselves, or to persecute the
community to which they belong.
Natalie was 12 years old when her village in the Democratic
Republic of Congo was attacked.
"I saw how many soldiers
raped my sisters and my mother. I was scared and I thought that
if I joined the army I would be protected. I wanted to defend
myself....I was only 12 years old, but I was frequently beaten
and raped during the night by the other soldiers. When I was
just 14 I had a baby. I don’t even know who his father
is. I ran away...I have nowhere to go and no food to give to
the baby".
In a 2002 report, the World Health Organization noted that "in
many countries that have suffered violent conflict, the rates
of interpersonal violence remain high even after the cessation
of hostilities -- among other reasons because of the way violence
has become more socially acceptable and the availability of
weapons."(14)
Violence in post-conflict situations
The level of violence does not necessarily reduce once the conflict
has abated.(15) In the USA, domestic violence and murder by
soldiers returning from combat is emerging as a serious issue.
One study, conducted by the US Army, found the incidence of
"severe aggression" against spouses three times as
high in army families as in civilian ones.(16)
Post-conflict societies have seen an increase in violence against
women associated with the presence of international peace-keeping
forces. Women from neighbouring countries have been trafficked
into Kosovo for forced prostitution since the deployment of
the international peacekeeping force, KFOR,(17) and the establishment
of the UN civilian administration, UNMIK,(18) in July 1999.
Trafficking was identified as a problem soon after UNMIK’s
arrival, but the number of premises where trafficked women are
forced to work as prostitutes has continued to rise, reaching
more than 200 by July 2003. The UN has taken steps to address
this; however, implementation remains a challenge.(19)
Peace processes have routinely failed to include women and to
deal with gender issues, which can result in gender-based persecution
and violence being rendered invisible in peace agreements and
not taken into account in their interpretation and implementation.
For example, an AI delegation which visited Sierra Leone in
2000 reported that the process of disarmament, demobilization
and reintegration of former combatants was failing to address
the experiences of the many girls and women who had been abducted
by armed opposition groups and forced to become their sexual
partners. It appeared that when they reported for disarmament
and demobilization, they were often not interviewed separately
from their "husbands" and not offered a genuine opportunity
to leave the armed forces, if they wished to do so. These women
and girls, many either pregnant or with young children, required
support to either return to their families where possible or
to re-establish their lives together with their children.(20)
In October 2000, the Security Council adopted a landmark resolution
on women, peace and security.(21) Building,
inter alia,
on the Women’s Convention, the Beijing Declaration and
Platform for Action, and the outcome document the twenty-third
session of the General Assembly, the resolution reaffirmed women’s
right to protection in conflict and post-conflict situations,
urged all actors involved in negotiating and implementing peace
agreements to adopt a gender perspective, and urged increased
participation by women in all peace processes.
Abuses by armed political groups
Over the past several years, armed groups operating in all regions
of the world have been responsible for some of the worst human
rights abuses, including brutal and systematic acts of violence
against women, such as rape and other forms of sexual violence.
Cherifa Bouteiba, a 20-year-old woman from Algeria, was abducted
by armed men on 2 June 2001. She was forced to walk into the
mountains where she was repeatedly raped by several men over
a two-day period. On the third day she was able to escape. She
had been pregnant at the time of her abduction and subsequently
miscarried. Her husband divorced her on the grounds that she
had soiled his honour. Cherifa Bouteiba fears her assailants
may come back for her. She believes some of the men who assaulted
her gave themselves up to the authorities in 2002 and were granted
immunity from prosecution. Ever since she saw some of her attackers
walking freely in the area where she lives, is hiding behind
her veil, hoping she will not be recognized.
Refugees and asylum-seekers
Women refugees and asylum-seekers often find themselves caught
in an inescapable cycle of violence. Fleeing from one dangerous
situation, many women are abused during their flight in search
of safety. Government officials such as border guards, smugglers,
pirates, members of armed groups, even other refugees, have
all been known to abuse refugee women in transit. Women and
girls are sometimes not even safe from sexual and other exploitation
by humanitarian aid workers -- the very people charged with
responsibility for the welfare of refugees and the displaced.
In a number of countries, asylum-seekers are detained in regular
prisons where they are effectively treated as criminals. AI
and other human rights organizations have documented incidents
of abuse of women and girl refugees and asylum-seekers in detention
and conditions which amount to cruel, inhuman or degrading treatment.
Women have been humiliated, raped, and in some instances driven
to attempt suicide or commit acts of self-harm.(22)
When women return to their countries of origin, they may find
themselves living alongside the perpetrators of the abuses that
forced them to flee. Returning from exile, women and girls may
also encounter a new set of problems. The breakdown of community
structures and traditional roles that often results from conflict
and flight presents new challenges in a post-conflict society.(23)
Reports in 2002 by the Office
of the UN High Commissioner for Refugees (UNHCR), together with
Save the Children-UK, documented serious allegations of sexual
abuse and exploitation of women and children by humanitarian
workers in camps for refugees and displaced people in Sierra
Leone, Liberia and Guinea. Allegations included humanitarian
workers deliberately withholding food and services in order
to extort sexual favours. In Nepal, it was acknowledged by UNHCR
that Bhutanese refugees in camps were found, in at least 18
cases, to have been victims of sexual abuse and exploitation
by refugee aid workers. The victims included a seven-year-old
girl and a woman with disabilities.
Amnesty International calls on the Commission to:
· Urge governments to take steps, including through national
action plans and gender specific budgets, to ensure the protection
of women’s human rights, including full and prompt implementation
of the Women’s Convention, its Optional Protocol, the
Rome Statute and other international standards;
· Call on those governments that have yet to do so to ratify
the Women’s Convention, i.e. Brunei Darussalam, the Holy
See, Iran, Kiribati, the Marshall Islands, Federated States
of Micronesia, Monaco, Nauru, Oman, Palau, Qatar, Somalia, Sudan,
Swaziland, Tonga, United Arab Emirates, the United States of
America;
· Call on all states parties to the Women’s Convention
which have entered reservations to re-examine these with a view
to withdrawing them;
· Call on all states parties to the Women’s Convention
to ratify its Optional Protocol without making a declaration
under Article 10 to opt out of the inquiry procedure;
· Call on all governments to enact, reinforce or amend domestic
legislation in accordance with international standards to protect
the right of women and girls to freedom from violence; to provide
gender-awareness training to professionals who deal with victims
of domestic violence, including law enforcement personnel, health
workers and the judiciary; and to review, as a matter of urgency,
those practices and factors which discourage women from taking
action to escape from violence and seek redress;
· Call on all parties to armed conflict to take special measures
to protect women and girls from gender-based violence, particularly
rape and other forms of sexual abuse; to investigate all acts
of violence against women during war, to bring to justice those
responsible and to provide full redress to the victims;
· Urge governments to ensure full and speedy implementation
of Security Council resolution 1325 (2000) on women, peace and
security as well as the recommendations contained in the study
by the Secretary-General on women mandated by that resolution;
· Welcome the resolution by the General Assembly to mandate
the Secretary-General to prepare an in-depth study on all forms
of violence against women and to urge governments and UN bodies,
including the Special Procedures of the Commission, the treaty
monitoring bodies and the OHCHR to participate fully in this
process by submitting relevant information, including best practice,
and making recommendations for eradicating violence against
women;
· Continue to support the work of the Special Rapporteur on
violence against women including by ensuring full and prompt
implementation of her recommendations and by facilitating without
delay the visits requested, in particular the planned visit
to the Russian Federation in June and to Nigeria in July 2004;
· Encourage all Special Procedures of the Commission to pay
particular attention to gender-specific violations of human
rights within their respective mandates, to integrate these
issues fully in their missions, reports and recommendations,
to assess the extent to which such violations are reported to
them, and to recommend measures which should be taken to improve
this;
· To mandate the OHCHR, in cooperation with relevant agencies,
to develop a comprehensive program of technical assistance aimed
at eliminating violence against women.
For the 60th session of the Commission, AI is focusing in
particular on the following issues:
Each year since 1997 the Commission has adopted a resolution
on the question of the death penalty.(24) These resolutions
are important indications of the views of member states on how
to achieve the agreed UN goal of abolition of the death penalty.(25)
A similar draft resolution is expected to be presented to the
60th session of the Commission in 2004.
The resolutions call upon states that retain the death penalty
to establish a moratorium on executions and to observe agreed
safeguards in death penalty cases. In 2003 the text was strengthened
in several ways, including the addition of language urging retentionist
states not to extend the application of the death penalty to
crimes to which it does not presently apply (para. 5(a)). Resolution
2003/67 also urged all retentionist states "not to impose
[the death penalty] for crimes committed by persons below 18
years of age" (para. 4(a)); in previous resolutions, this
stricture had referred only to states’ obligations under
the international treaties to which they were party.
For the Commission’s consideration of the question this
year, an important source of information will be the yearly
supplement to the Secretary-General’s quinquennial report
on capital punishment, to be submitted to the 60th session of
the Commission.(26) AI’s information indicates continuing
progress towards worldwide abolition. In 2003 Armenia abolished
the death penalty in peacetime, and Kazakstan declared a moratorium
on executions. By mid-December 2003, 76 countries had abolished
the death penalty for all crimes; 16 had abolished it for ordinary
crimes only and 20 were abolitionist in practice, giving a total
of 112 countries abolitionist in law or practice. Eighty-three
countries and territories retained the death penalty, but many
of these did not carry out executions during the year.
Another important development was the entry into force in July
2003 of Protocol No. 13 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms (uHEuropean Convention
on Human Rights), the first international treaty to provide
for the abolition of the death penalty in all circumstances
with no exceptions permitted. By mid-December 2003 the protocol
had been ratified by 20 of the 44 Council of Europe member states
and signed by a further 21 states. The other three existing
abolitionist treaties - the Second Optional Protocol to the
ICCPR, Protocol No. 6 to the European Convention on Human Rights
and the Protocol to the American Convention on Human Rights
to Abolish the Death Penalty - had been ratified by 51, 43 and
eight states respectively.
Despite these positive developments, executions have continued,
and in some countries the safeguards referred to in resolution
2003/67 have not been respected. The death penalty has been
applied against the mentally ill and the mentally retarded,
against people convicted of non-violent crimes and in many cases
in which the defendants have not received a fair trial. One
country, the Philippines, announced the lifting of a moratorium
on executions, and there were calls to resume executions in
several other countries.
AI remains deeply concerned about the use of the death penalty
against child offenders - people convicted of crimes committed
when they were under 18 years old. Such use is contrary to resolution
2003/67 as well as the Commission’s resolutions 2002/47
(Human rights in the administration of justice, in particular
juvenile justice) and 2003/86 (Rights of the child), both of
which were adopted without a vote. AI believes it is also a
violation of customary international law, and that the prohibition
of use of the death penalty against child offenders should be
recognized as a peremptory norm of general international law
(
jus cogens).(27)
It should be noted that:
· 194 states are now parties to either the ICCPR or the Convention
on the Rights of the Child (CRC), both of which exclude the
use of the death penalty against child offenders.
· When the USA on ratifying the ICCPR entered a reservation
to exempt itself from the relevant provision of that treaty,
11 other states objected to the reservation. The Human Rights
Committee (HRC) recommended that the USA withdraw the reservation
and stated that it believed the reservation to be incompatible
with the object and purpose of the ICCPR.(28)
· Executions of child offenders are very rare in comparison
to the number of executions carried out worldwide. In 2003,
AI learned of only two executions of child offenders, one in
China(29) and one in the USA.
· Very few countries still execute child offenders; indeed,
such executions are very rare in comparison to the number of
executions carried out world wide. Of the eight countries reported
to have done so since 1990, at least three (China, Pakistan
and Yemen) have raised the minimum age to 18 in domestic law,
and others have denied carrying out executions. Only one country,
the USA, regularly executes child offenders and acknowledges
doing so.
· The Inter-American Commission on Human Rights has held that
"a norm of international customary law has emerged prohibiting
the execution of offenders under the age of 18 years at the
time of their crime" and that "this rule has been
recognized as being of a sufficiently indelible nature to now
constitute a norm of
jus cogens".(30)
AI has also been concerned about expansions of the scope of
the death penalty. Contrary to the agreed UN position that "the
main objective to be pursued in the field of capital punishment
is that of progressively restricting the number of offences
for which the death penalty may be imposed with a view to the
desirability of abolishing this punishment",(31) at least
one country, Morocco, extended the scope of the death penalty
to "terrorist"-related crimes in 2003.
At the 60th session of the Commission, AI will be working together
with other members of the World Coalition against the Death
Penalty. This organization, founded in Rome in May 2002, is
a coalition of human rights organizations, trade unions, bar
associations and local and regional authorities from different
parts of the world which have committed themselves to work together
for the abolition of the death penalty worldwide.
Along with the other members of the World Coalition against
the Death Penalty, Amnesty International calls on the Commission
to:
· Adopt a resolution on the question of the death penalty which
reiterates the provisions of the Commission’s previous
resolutions on the subject, as well as:
· Affirm that the imposition of the death penalty on those aged
under 18 at the time of the commission of the offence is contrary
to customary international law, as stated by the Commission’s
Sub-Commission on the Promotion and Protection of Human Rights,(32)
and recognize that the prohibition of use of the death penalty
against child offenders is a peremptory norm of general international
law (
jus cogens);
· Call upon states that still maintain the death penalty to
abolish it in wartime as well as peacetime;
· Call upon states that have abolished the death penalty to
enshrine abolition in their constitutions;
· Decide to discuss the issue again at its 61st session in 2005.
AI and the other members of the World Coalition against the
Death Penalty urge all members of the Commission to vote in
favour of such a resolution, and appeal to all states to co-sponsor
it.
AI also urges the Commission again to adopt resolutions on the
"Rights of the child" and "Human rights in the
administration of justice", in particular juvenile justice,
urging all states to ensure under their legislation and practice
that the death penalty cannot be imposed on people under 18
years of age at the time of the offence.
|
Human rights and counter-terrorism
|
Legislation and measures introduced by states to counter the
perceived or real treat of terrorist(33) acts have continued
to curtail human rights and to undermine the rule of international
law in a wide range of countries in all regions of the world.
While AI condemns unreservedly attacks on civilians, whether
committed by state or non-state actors, the organization has
repeatedly urged governments, both before and after the 11 September
attacks in the USA, to ensure that measures taken to prevent
and respond to terrorist acts are in strict conformity with
their obligations under international human rights law.(34)
Countries in regions have introduced new legislation or toughened
up existing laws after 11 September 2001. Common to most such
laws are vaguely worded definitions of new offences; sweeping
powers to hold people without charge or trial, often on the
basis of secret evidence; provisions to allow for prolonged
incommunicado detention, which may facilitate torture;
and measures which effectively deny or restrict access to asylum
as well as speed up deportations. A number of retentionist countries
have introduced new capital offences relating to "terrorism".
In order to illustrate the range of AI’s concerns regarding
the impact of counter-terrorism measures on human rights, please
see the summaries below on concerns in he following countries:
China, Malaysia, Russian Federation, Tunisia, UK, USA and Yemen.
Russian Federation
The 1998 Law to Combat Terrorism makes it virtually impossible
for anyone with a grievance arising from an "anti-terrorist"
operation to gain redress. It exempts from liability those participating
in such an operation, even if they violate human rights.
Responsibility for planning "anti-terrorist" operations
lies with federal bodies - the President and the government
of the Russian Federation - which may set up a command centre
to tackle individual incidents, according to Article 10 of the
Law. This centre would normally include representatives of the
Federal State Security Service; the Ministry of Internal Affairs;
the Ministry of Defence; the Federal Border Guards’ Service;
the External Intelligence Service; and the Service of Federal
Protection - under the overall control of the President of the
Russian Federation.
The Law to Combat Terrorism does not, however, ascribe any responsibility
to the decision-makers for damage arising from an "anti-terrorist"
operation. Material damages are to be paid by the authority
where the incident happens to take place and according to fixed
rouble tariffs - provisions set down in Articles 17(1) and 20
of the Law. Neither federal nor local authorities are liable
under this law for "moral damage" to survivors. The
only exception is for foreign nationals who suffer damages in
an "anti-terrorist" operation in the Russian Federation,
who may claim compensation from the federal bodies in charge
of the operation.(37)
Following consideration of the fifth periodic report of the
Russian Federation, the Human Rights Committee stated that "[t]he
State party should ensure that operations in Chechnya are carried
out in compliance with its international human rights obligations.
The State party should ensure that abuse and violations are
not committed with impunity,
de jure or
de facto,
including violations committed by military and law enforcement
personnel during counter-terrorist operations. All cases of
extrajudicial executions, enforced disappearances and torture,
including rape, should be investigated, their perpetrators prosecuted
and victims or their families compensated (articles 2, 6, 7
and 9)".(38)
United Kingdom
Emergency legislation in the UK has been of concern to AI since
the 1970s. The organization has documented that provisions of
such legislation have violated international human rights law
and facilitated abuses of human rights, including torture and
cruel, inhuman or degrading treatment and unfair trials. In
the aftermath of the 11 September 2001 attacks, the UK government
stated that the threat posed to the UK by the
al-Qa’ida
network amounted to "a public emergency" which
necessitated the enactment of new "anti-terrorist"
measures. The Anti-terrorism, Crime and Security Act 2001 (ATCSA)
was passed by the UK Parliament and enacted on 14 December 2001.
AI is concerned that following its enactment, serious human
rights violations have taken place in the UK.
Under the ATCSA, non-UK nationals, whose removal or deportation
from the UK cannot be effected, can be certified as "suspected
international terrorists" by the Secretary of State and
immediately detained without charge or trial for an unspecified
and potentially unlimited period of time, principally on the
basis of secret evidence. As of 18 November 2003, the Home Secretary
had certified 17 people as "suspected international terrorists"
and there were 14 people -- all non-UK nationals -- detained
under the ATCSA in high security establishments in the UK. AI
believes that in applying Part 4 of the ATCSA people have effectively
been "charged" with a criminal offence, and "convicted"
and sentenced to an indefinite term of imprisonment without
a trial. In addition, as these provisions can only be applied
to non-UK nationals, AI considers that Part 4 of the ATCSA violates
the prohibition of discrimination enshrined in international
law. The organization continues to call on the UK government
to release all persons detained under the ATCSA unless they
are charged with a recognizably criminal offence and tried by
an independent and impartial court in proceedings which meet
international standards of fairness.(42)
Developments at the UN
AI welcomes the adoption by the 58th session of the General
Assembly of the resolution on "Protection of human rights
and fundamental freedoms while countering terrorism".(48)
Building on previous resolutions adopted by the 57th session
of the General Assembly(49) and the 59th session of the Commission,(50)
the new resolution re-affirms that states must ensure that measures
to combat terrorism comply with their obligations under international
law, in particular human rights, humanitarian and refugee law.
In adopting resolution 1456 on 20 January 2003, the Security
Council also stressed the importance of this obligation. The
General Assembly resolution also calls on the Counter-Terrorism
Committee (CTC) to strengthen its cooperation with relevant
human rights bodies (especially the OHCHR), requests the Special
Procedures of the Commission as well as the treaty monitoring
bodies, within their mandates, to consider the protection of
human rights in the context of measures to combat terrorism,
and to coordinate their efforts and exchange information. Further,
the resolution requests the High Commissioner for Human Rights
to continue to examine the question of the protection of human
rights while countering terrorism, to make general recommendations
and provide assistance and advice to states upon their request.(51)
Of particular importance is the General Assembly’s request
to the OHCHR to "submit a study on the extent to which
the Special Procedures and treaty monitoring bodies are able,
within their existing mandates, to address the compatibility
of national counter-terrorism measures with international human
rights obligations".
AI also welcomes the joint statement by the Special Procedures
of the Commission, at their annual meeting in July 2003, in
which they "voiced profound concern at the multiplication
of policies, legislations and practices increasingly being adopted
by many countries in the name of the fight against terrorism,
which affect negatively the enjoyment of virtually all human
rights
-- civil, cultural, economic, political and social".
They strongly affirmed that any measures taken by States to
combat terrorism must be in accordance with their obligations
under the international human rights instruments, and expressed
their determination, within the framework of their respective
mandates, to monitor and investigate developments in this area.
While welcoming the increased attention by the Special Procedures
and treaty monitoring bodies on the impact of counter-terrorism
measures on human rights, AI wishes to underline that the work
of these bodies in this area remains severely restricted because
of mandate, periodic reporting and other constraints. Consequently
AI is convinced that a new mechanism needs to be established
on human rights and counter-terrorism. This is important in
order to link the UN’s human rights expertise in this
area more effectively with the CTC, which, as a Security Council
body, has an important role to play but continues to neglect
the importance of the human rights dimensions of its work.
The benefits of a new mechanism on human rights and counter-terrorism
would be manifold:
· It will be able to specifically focus on the impact of counter-terrorism
measures on human rights and assist states in meeting their
human rights obligations;
· It will be able to strengthen the dialogue and enhance cooperation
between the UN’s human rights experts and the CTC with
a view to better assist in states in fully implementing their
obligations in Security Council resolutions 1373 and 1456;
· It will serve as a focal point for the UN on this important
issue. It will be able to better coordinate the work of the
other Special Procedures, country mandates as well as thematic
mandates;
· It will be able to take into account the observations and
recommendations of the treaty monitoring bodies.
Together with other NGOs, Amnesty International calls on
the Commission to:
· Urge states to ensure that in taking counter-terrorism measures
they fully meet their obligations under international laws,
in particular human rights, humanitarian and refugee law;
· Establish a new mechanism mandated to monitor and analyze
the impact on human rights of measures taken by states to combat
terrorism, and to make recommendations to states as well as
other relevant UN bodies aimed at ensuring full protection of
human rights and fundamental freedoms;
· Call on states to implement the recommendations of the Special
Procedures and the treaty bodies relating to counter-terrorism
measures;
· Encourage the Special Procedures of the Commission to continue
to monitor and report, as appropriate, on the impact of counter-terrorism
measures on human rights and to make recommendations for their
effective observance;
· Request the High Commissioner for Human Rights to ensure high-level,
sustained and adequately resourced capacity at the OHCHR to
analyze the global impact on human rights of counter-terrorism
measures by states and act on that basis including by providing
appropriate assistance and advice to states.
|
Human rights and sexual orientation
|
At the 59th session of the Commission, Brazil introduced a draft
resolution titled "Human Rights and Sexual Orientation",(52)
which expressed concern at the occurrence of human rights violations
against persons because of their sexual orientation, called
upon states to promote and protect the human rights of all persons
and asked the High Commissioner for Human Rights and the UN
special procedures to pay attention to the issue. The draft
resolution did not attempt to create a new body of rights, but
sought to reaffirm existing non-discrimination principles established
under international human rights law. However, the draft text
proved to be one of the most fiercely contended issues of the
session. Pakistan, on behalf of the Organisation of Islamic
Conference (OIC), proposed a motion that the Commission take
"no action" on the draft resolution which was narrowly
defeated.(53) On the final day of the session, the Chair’s
proposal to postpone consideration of this draft resolution
to the 60th session was adopted by roll-call vote.(54)
AI has been documenting abuses based on sexual orientation or
gender identity from countries all over the world for more than
a decade.(55) These atrocities have included the death penalty,
imprisonment, torture and cruel and ill-treatment (including
rape and forced medical treatment), attacks on lesbian, gay,
bisexual and transgender (LGTB) human rights defenders, denial
of legal status to LGTB rights organizations and other forms
of discrimination. In many countries, the ill-treatment of people
due to their sexual orientation or gender identity provokes
little outrage and those who defend such cases have themselves
been attacked by the government or other groups in society.
Human rights defenders working in issues of sexuality have increasingly
turned to international human rights bodies, including those
of the UN, to seek protection against these abuses.
Over the last 10 years, the treaty bodies (ICCPR,(56) the ICESCR,(57)
the CRC(58) and CEDAW(59)) and the Special Procedures of the
Commission have addressed violations across the full range of
rights enshrined in international treaties and consistently
called on governments to respect and promote the rights of all
without discrimination on the grounds of sexual orientation.
However, at the political bodies of the UN, including the Commission
and UN World Conferences, governments have systematically resisted
any recognition of these rights violations, deleting any proposed
reference to ‘sexual orientation’ from Commission
resolutions and instruments adopted at World Conferences, i.e.
the Fourth UN World Conference on Women, Beijing, September
1995. Brazil’s draft resolution, if adopted, would represent
an important acknowledgement by governments at the Commission
of the rights which have been affirmed, consolidated and promoted
by the expert bodies for more than a decade.
Human rights violations based on sexual orientation or gender
identify
In some states, persons perceived to be homosexual continue
to be sentenced to death, in some cases solely for their sexual
orientation. AI recently raised concerns about a case in the
USA where the prosecution referred to the homosexuality of the
accused during the trial in order to obtain the death penalty.(60)
Throughout the world LGBT persons suffer torture or ill-treatment
by state officials to extract confessions of "deviance",
or rape to "cure" them of it.(61)
The Special Rapporteur on extrajudicial, summary or arbitrary
executions continues to receive reports of persons having been
subjected to death threats or extrajudicial execution because
of their sexual orientation and gender identity.(62) Since 2002,
a reference to "killings committed for any discriminatory
reason, including sexual orientation" has been included
in the Commission’s resolution on "Extrajudicial,
summary or arbitrary executions", despite strong opposition
from some countries including those belonging to the OIC.(63)
AI has received dozens of allegations of torture and ill-treatment
in detention, which indicate the risk is highest in police stations,
particularly during the initial period of detention.(64) The
"Queen Boat" case(65) in Egypt has been taken up by
the HRC(66), the Committee against Torture (CAT),(67) the Working
Group on Arbitrary Detention (WGAD)(68), the Special Rapporteur
on the independence of judges and lawyers(69) and the European
Parliament.(70) The WGAD clearly stated that the detention of
people on the grounds "that by their sexual orientation,
they incited ‘social dissention’ constitutes or
has constituted arbitrary deprivation of liberty".
The Special Rapporteur on violence against women has commented
that "[u]nless women come to be seen as individual beings
with rights to determine their sexuality, their inferior social
position will continue to permit violence against them."(71)
Yet, the prevalence in society of sexism and homophobia creates
a climate where lesbians are at grave risk of abuse. AI has
documented cases of young lesbians being beaten, raped and attacked
by family members to punish them and break their spirit.(72)
Regardless of how they define themselves, women who are perceived
to be attracted to other women are at particular risk of ill-treatment
in societies where they are viewed as bringing "shame"
on their families or communities.(73)
Around the world organizations have emerged to defend the rights
of LGBT people and to address the connections between human
rights and sexuality. Often they face particular obstacles including
social stigma, physical attacks and denial of legal status.(74)
In 2001, the Special Representative of the Secretary-General
on human rights defenders noted that those defending sexual
rights are at particular risk of repression and marginalisation.(75)
A small number of LGBT people, relative to the total facing
discrimination, have managed to flee their countries of origin
in search of refuge from persecution. However, many countries
are still reluctant to grant asylum to people who fear persecution
as a result of their sexual orientation or gender identity.
The definition of a refugee does not explicitly reference sexual
orientation or gender identity.(76) However, it has been widely
recognized in case law, in state practice generally and in authoritative
guidance from the UN High Commissioner for Refugees (UNHCR)
that people sharing sexual orientation can constitute a "particular
social group" under the Refugee Convention.(77)
AI considers the use of "sodomy" laws - retained by
at least 70 states - to imprison men and women for same-sex
relations in private as a grave violation of human rights, including
the rights to privacy, to freedom from discrimination, and of
expression and association. It has also been condemned by the
HRC, (78) the Committee on Economic, Social and Cultural Rights
and the Committee on the Elimination of Discrimination against
Women. Since 1999, the HRC has called on states not only to
repeal laws criminalising homosexuality, but also to include
in their constitutions the prohibition of any discrimination
based on sexual orientation.(79) AI has also reported the rape
and torture of men and women in detention in Uganda where homosexuality
is a criminal offence.
Amnesty International calls on the Commission to:
· Adopt a resolution affirming the universality of human rights
and condemning human rights violations against a person on the
grounds of their sexual orientation or gender identity;
· Call on states to promote and protect the human rights of
all persons regardless of their sexual orientation or gender
identity;
· Call on states to support the recommendations by the treaty
bodies and the Special Procedures to end human rights violations
on the grounds of sexual orientation or gender identity.
|
Human rights of refugees, asylum
seekers,and other migrants and non-nationals
|
AI has long advocated the increased use of international human
rights mechanisms for the protection of refugees and asylum
seekers.(80) Refugees and asylum seekers have been forced to
leave their homes and places of origin because they are at risk
of, and have suffered, human rights abuses. In addition, many
refugees and asylum seekers continue to endure violations of
their human rights, including their economic, social and cultural
rights, in countries that they initially arrive at in search
of protection. Very often, such violations continue as they
move onward from such countries of first asylum, in search of
effective protection. Many of the abuses suffered by refugees,
asylum seekers, and other migrants and non-nationals are the
result of the unwillingness or inability of states to uphold
and protect the rights of these individuals. The vilification
of ‘non-nationals’ in a world preoccupied with narrowly
and selectively defined security is often at the root of such
discriminatory and abusive policies and practices. It is AI’s
view that international human rights bodies, such as the Commission,
must address the human rights abuses suffered by these particularly
vulnerable individuals.
As it did in 2003, AI asks the 60th Session of the Commission
to pay specific attention to the protection of refugees and
asylum seekers as a human rights issue. The organization would
also remind the Commission of the need to bring the protection
of human rights standards to bear on the treatment of non-nationals
more generally, including regular and irregular migrants, and
stateless persons.
At the 59th session, the Commission adopted resolution 2003/52
on ‘Human rights and mass exodus’, in which it called
on the Office of the High Commissioner for Human Rights to prepare
an analytical report on measures taken to implement the resolution
and obstacles to its implementation. This analytical report
would be accompanied by an annex, consisting of a thematic compilation
of relevant reports and resolutions of the Commission and the
Sub-Commission on the Promotion and Protection of Human Rights
(the Sub-Commission). The report and its annex will be submitted
to the Commission at its 61st Session in 2005. In order to ensure
that the content of the report and the annex reflects a strong
focus on the rights of refugees, asylum seekers, and other migrants
and non-nationals, AI will attempt to ensure that the specific
vulnerabilities of this group of individuals are reflected in
all relevant resolutions adopted by the Commission. AI will
also continue to call on the Special Procedures of the Commission
to pay specific attention to the human rights, including the
economic, social and cultural rights, of refugees, asylum seekers
and other migrants and non-nationals.
A resolution adopted at the 55th session of the Sub-Commission
in August 2003 on the human rights of non-citizens will be brought
to the 60th Session of the Commission for decision. The resolution
asks the Commission
inter alia "to appoint one of
its members as Special Rapporteur with the task of furthering
the study of the rights of non-citizens based on the final report".(81)
This mandate, which would be based within the Sub-Commission,
would aim to monitor the rights of non-citizens, and take effective
action
inter alia through recommendations to the Sub-Commission,
other relevant UN bodies, and other interested parties, and
through the preparation of an annual report to the Sub-Commission
on the rights of non-citizens. AI believes that everyone is
entitled to respect for their human rights, regardless of the
labels they are given, and will be following this debate surrounding
this mandate with interest.
Amnesty International calls on the Commission to:
· Work towards effective respect for the human rights of non-citizens,
including refugees, asylum seekers, and other migrants;
· Ensure that the human rights of refugees, asylum seekers,
and other migrants and non-nationals are reflected in all relevant
resolutions of the Commission;
· Call on the Special Procedures of the Commission to give attention
to the rights of refugees, asylum-seekers and other migrants
and non-nationals.
|
Norms on the Responsibilities of
Transnational Corporations and Other Business Enterprises
with regard to Human Rights
|
At its 55th session in August 2003, the Sub-Commission on the
Promotion and Protection of Human Rights (the Sub-Commission)
approved the draft
Norms on the Responsibility of Transnational
Corporations and Other Business Enterprises with regard to Human
Rights(82) (hereafter the Human Rights Norms for Businesses)
and decided to transmit the Norms to the Commission for consideration
and adoption.(83)
In AI’s view, governments, advocates and companies should
support the Human Rights Norms for Businesses as offering an
authoritative and comprehensive statement of the responsibilities
of companies in relation to human rights. The Human Rights Norms
for Businesses provide clarity and credibility amidst many competing
voluntary codes that too often lack international legitimacy,
and provide far less detail on human rights issues. AI supports
efforts to strengthen the legal basis for the Human Rights Norms
for Businesses, and calls on governments, companies and advocates
to disseminate and apply them.
The UN Charter of 1945 and the Universal Declaration of Human
Rights (UDHR) of 1948 spelt out a number of important human
rights obligations for nations, individuals, and other groups.
In many instances, these obligations have now become customary
international law, binding on all states. Significantly, the
UDHR calls not only on nations, but also on individuals and
"every organ of society" to respect, promote, and
secure human rights -- laying the foundation for obligations
which apply not only to states but also to non-state actors
including private businesses.
Scrutiny of the activities of global businesses led many companies
to adopt codes of conduct during the 1980s and 1990s, and an
emerging movement toward greater corporate social responsibility
led to numerous voluntary codes. However, voluntary codes of
conduct, while a welcome signal of corporate commitment, have
proved insufficient in preventing the involvement of companies,
directly or indirectly, in human rights abuses. This has resulted
in calls for a more detailed, comprehensive and effective instrument.
The Human Rights Norms for Businesses took shape in this context.
The Human Rights Norms for Businesses constitute an authoritative
interpretation of the extent to which human rights obligations
apply to companies. They are rooted in and derive from existing
human rights law. There is a clear basis in international law
for extending direct legal obligations to companies in relation
to human rights and, although themselves not a formal treaty,
the Human Rights Norms for Businesses clarify the scope of these
obligations. The Norms highlight best practice and various modes
of monitoring and enforcement. AI is committed to ensuring that
there is a clear international legal framework establishing
the obligations
of companies in relation to human rights.(84)
The Human Rights Norms for Businesses set forth basic, minimal
business obligations regarding human rights. They reaffirm that
"
states still bear the primary responsibility"
for promoting and protecting human rights, but recognize that
transnational corporations and other businesses, as organs of
society (and collections of individuals), carry responsibilities
as well. The first operative paragraph states that the responsibilities
apply to businesses "
within their respective spheres
of activity and influence". Within these spheres of
activity and influence, the Human Rights Norms for Businesses
require companies to "promote, secure the fulfilment of,
respect, ensure respect of and protect human rights recognized
in international as well as national law".(85)
The norms are intended to reinforce the approach that is most
protective of human rights, whether that is found in international
law, national law, or other sources, now or in the future. The
norms attribute both positive and negative obligations on businesses:
in order to avoid complicity in violations as well as promote
respect for human rights, businesses can no longer be wilfully
ignorant of the circumstances in which they operate; they must
become much more aware of and sensitive to those circumstances,
and much more engaged in taking action to influence human rights
positively. The Norms are intended to reaffirm and rationalise
the array of existing standards relating to the human rights
responsibilities of companies, which include UN treaties, the
UN Global Compact, the Geneva Conventions, International Labour
Organization (ILO) conventions and the Organisation for Economic
Co-operation and Development (OECD) Guidelines for Multinational
Enterprises.
The Norms will assist companies that want to conduct themselves
in a way that is socially responsible, they will provide a level
playing field for competition among all businesses, and will
help assess risks associated with human rights problems. The
Norms are also a useful indicator of the growing expectations
of consumers, investors, employees and civil society organizations
with regard to the human rights responsibilities of business.
Human rights abuses destabilise the investment climate. At stake
are employee safety, company assets, project viability and corporate
reputation. It is evident that businesses’ licence to
operate and their reputation depend on their acceptability to
society at large. Respect for human rights is at the core of
this acceptability. Without a firm commitment to upholding international
human rights standards, companies are exposing themselves to
risk.
There is widespread agreement that companies ought to respect
human rights, avoid being complicit in human rights abuses,
and, within their sphere of influence, do what they can to promote
human rights principles. The Human Rights Norms for Businesses
provide a helpful framework of universal principles detailing
what corporate human rights commitments mean in practice.
The time has come for a stronger international framework for
corporate accountability, and the Human Rights Norms for Businesses
are a significant contribution in this direction. By bringing
together international human rights, labour rights, and environmental
laws and standards pertaining to global business, and by surveying
key international instruments and best practices, the Human
Rights Norms for Businesses provide helpful guidance and leadership
opportunities for businesses willing to comply with their legal
and ethical responsibilities.
Amnesty International calls on the Commission to:
· Support the Human Rights Norms for Businesses, including by
welcoming their adoption by the Sub-Commission.
· Ensure the dissemination of the Human Rights Norms for Businesses
to governments, UN bodies, specialized agencies, members of
the Global Compact, non-governmental organizations (NGOs) and
other interested parties, invite them to submit their comments
on the Norms and ask the OHCHR to assist in producing a compilation
of such comments for consideration by the Commission at its
61st session (2005) and by the Sub-Commission at its 57th session
(2004).
A number of standard setting exercises are currently underway
at the Commission. AI is following in particular the work of
the inter-sessional working group mandated to draft a legally
binding instruments on enforced disappearances, the working
group considering options regarding the elaboration of an optional
protocol to the ICESCR, and the work to finalize the "Basic
principles and guidelines on the right to a remedy and reparation
for victims of violations of international human rights and
humanitarian law".
|
Draft binding instrument on enforced
disappearance
|
Thousands of people around the world remain "disappeared".
They were arrested or abducted by state agents, but governments
deny holding them. New cases of "disappearances" are
recorded each year. "Disappearances" cause extreme
agony for the victims and their relatives: the victims are often
tortured or killed, and their relatives are unable to find out
whether their loved ones are alive or dead.
After more than two decades of campaigning by organizations
of relatives of the "disappeared", the Commission
established in 2001 an "inter-sessional open-ended working
group to elaborate a draft legally binding normative instrument
for the protection of all persons from enforced disappearance".(86)
The working group held its first formal session in January 2003
and the second is due to take place in January 2004.
The draft treaty will include measures to prevent "disappearances",
to bring perpetrators to justice and to afford reparations to
victims. Also under discussion is an urgent judicial remedy
which relatives can invoke to discover victims’ whereabouts
and ensure their well-being. AI believes that the instrument
should require the establishment of enforced disappearance as
an independent crime under national law, following the similar
provision in the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (Convention against
Torture), which requires a state party to ensure that "all
acts of torture are offences under its criminal law".(87)
Enforced disappearances should be treated as a continuous crime
until the fate of the disappeared person is established. Due
to the supreme seriousness of the crime, there should no statute
of limitation, in civil as well as criminal proceedings, for
those responsible for "disappearances". The new instrument
should set out the obligation to conduct prompt, thorough and
impartial investigations into complaints and report of enforced
disappearances and should specify how such investigations should
be conducted.(88) No amnesties or pardons should be granted
on the grounds that these may prevent a final judicial determination
of guilt or innocence and full reparations to the victims and
their families.
At the 59th session in 2003, the Commission welcomed "the
substantial progress made during the first session of the working
group"(89) as reported in the report of the Chairperson
of the working group.(90) Further progress was made at the working
group’s informal session in September 2003. At the second
formal session in January 2004, the working group will have
before it a draft text prepared by the working group’s
presidency.
Amnesty International calls on the Commission to:
· Welcome the progress made by the inter-sessional working group
and continue to support its work including by adopting by consensus
a resolution on the "Question of enforced or involuntary
disappearances";
· Request the working group to submit a proposal to the 61st
session of the Commission in 2005.
|
An optional protocol to the International
Covenant on Economic, Social and Cultural Rights
|
At its 59th session, the Commission received the second report
of the Independent Expert appointed in 2001 to examine the question
of a draft optional protocol to the International Covenant on
Economic, Social and Cultural Rights (hereinafter OP to the
ICESCR).(91) In his report, the Independent Expert focused on
three questions in particular: the questions of the nature and
scope of states parties’ obligations under the ICESCR;
the question of justiciability of economic, social and cultural
rights; and the question of the benefits and the practicability
of a complaint mechanism under the ICESCR.(92)
The resolution adopted by the Commission in 2003 requested the
working group, established in 2002,(93) to consider "options
regarding the elaboration of an optional protocol to the ICESCR"
and "to meet for a period of ten working days prior to
the 60th session of the Commission".(94) As a contribution
to this meeting (which will take place in February 2004) NGOs
will submit a joint submission listing a number of issues to
be considered by the working group as well as the core elements
that should be included in the OP to the ICESCR.
The UN World Conference on Human Rights, held in Vienna in June
1993, requested the Commission to continue the examination of
optional protocols to the ICESCR.(95) Together with other NGOs,
AI continues to campaign for its early elaboration and adoption:
· An optional protocol to the ICESCR would provide individuals
and groups with international recourse with respect to violations
of economic, social and cultural rights;
· The creation of a complaints mechanism would greatly assist
the realization of economic, social and cultural right;:
· It would mark an important step towards strengthening the
principle of progressive realization of economic, social, and
cultural rights to which states parties to the ICESCR have committed
themselves;
· The consideration of specific cases of violations of economic,
social and cultural rights would contribute to the development
of jurisprudence;
· It would strengthen the relationship between the Committee
on Economic, Social and Cultural Rights and states parties by
creating an impetus at the national level for states parties
to ensure effective national implementation of the rights guaranteed
in the ICESCR;
· It would ensure complementarity and consistency with the ICCPR
for which an individual complaints mechanism is in place already.(96)
Amnesty International calls on the Commission to:
· Mandate the inter-sessional working group of the Commission
to draft an optional protocol to the ICESCR, in close cooperation
with the Committee on Economic, Social and Cultural Rights,
the Independent Expert, relevant special rapporteurs, governments
and NGOs, on the basis of the guidelines contained in the annex
to the report of the Committee on Economic, Social and Cultural
Rights;(97)
· Request the Secretary-General to provide the working group
with the necessary resources.
|
Basic principles and guidelines
on the right to a remedy and reparation for victims
of gross violations of international human rights law
and serious violations of international humanitarian
law
|
At its 41st session in 1989, the Sub-Commission on Prevention
of Discrimination and Protection of Minorities (the Sub-Commission)
requested Special Rapporteur Theo van Boven to undertake a study
concerning the right to restitution, compensation and rehabilitation
for victims of gross violations of human rights and fundamental
freedoms.(98) Following this study,(99) the Secretary-General
in 1996 transmitted to the Commission the revised draft basic
principles and guidelines prepared by Mr. van Boven.(100)
In 1998, at its 54th session, the Commission appointed Mr. Cherif
Bassiouni as independent expert to prepare a revised version
of the draft basic principles and guidelines.(101)
At its 59th session in 2003, the Commission requested the OHCHR
to hold a second consultative meeting for all interested parties
with a view to finalizing the "Basic principles and guidelines
on the right to a remedy and reparation for victims of violations
of international human rights and humanitarian law" (the
Basic Principles), and if appropriate, to consider options for
the adoption of these principles and guidelines.(102)
AI has followed closely the development of the Basic Principles
and has been campaigning for their early adoption. Once adopted
the Basic Principles will add a unique perspective to the current
international system of human rights, by addressing the right
to reparation from the perspective of victims of violations
of international human rights and humanitarian law.
The Basic Principles address
both
international and domestic human rights forums, while setting
out the state’s obligations under international law. For
example, proposed article 21 of these principles points out
that "States should provide victims of violations of international
human rights and humanitarian law the following forms of reparation:
restitution, compensation, rehabilitation, and satisfaction
and guarantees of non-repetition".
The right to remedy and reparation for victims of violations
of human rights and international humanitarian law and the families
of such victims is well established in international and regional
treaty and practice; however there is currently no instrument
that brings all these standards together. For example:
· The Inter-American Commission on Human Rights and the Inter-American
Court of Human Rights has a substantial amount of jurisprudence
on reparation.
· Article 75 of the Rome Statute, provides that the ICC may
award reparations to victims of crimes under its jurisdiction.
· Article 14 of the Convention against Torture guarantees the
right of torture victims to obtain reparation, including redress,
fair and adequate compensation and the means for as full rehabilitation
as possible.
· Redress involves official recognition that harm has been done
to the person in question. Article 14 of the Convention against
Torture guarantees the right of torture victims to obtain reparation,
including redress, fair and adequate compensation and the means
for as full a rehabilitation as possible. Members of the CAT
have regularly emphasised that the obligation of Article 14
involves not only the provision of material compensation and
redress, but also physical, mental and social rehabilitation.
AI has participated in the process of drafting the principles,
including by calling for the text to ensure the inclusion of
all rights to reparation and remedy.(103) At the close of the
last consultative meeting in October 2003, the Chair of the
meeting recommended that a further meeting should take place
before the 60th session of the Commission to finalise the text
for approval by the Commission. If this meeting goes ahead,
AI will issue a set of recommendations to further strengthen
of the draft principles, and in due course recommendations for
decision by the Commission.
|
Protection of human rights in individual
country situations
|
"At the outset of its work the
Commission set for itself the task of establishing an
International Bill of Human Rights which would have three
parts: a universal declaration, one or more covenants,
and measures of implementation. The first two parts have
been well realized. The Commission is still engaged on
the third part: measures of implementation. Effective
implementation is a test of the credibility of the human
rights enterprise."
Statement by Bertrand Ramcharan, Acting
High Commissioner for Human Rights,
at the opening of the 60th session of the Commission,
19 January 2004
|
The Commission is the main UN body charged with the promotion
and protection of human rights world wide and mandated to take
action against human rights violations wherever these occur.(104)
As such AI, civil society, victims and their families look to
the governments serving on the Commission to unequivocally denounce
grave and systematic violations of human rights wherever these
occur and whoever the perpetrators, to call on governments to
implement concrete measures to protect human rights and to support
its own mechanisms in addressing violations of human rights.
Over the years an extensive body of international human rights
standards and a wide range of mechanisms have been developed
to scrutinize states’ human rights record and hold them
politically and legally accountable. Although the Commission
is seized of the human rights situation in some 20 countries,
this list does not fully represent the range of concerns reported
by AI and other human rights organizations as well as by the
Commission’s own mechanisms. Countries with a poor human
rights record, such as Algeria, China, Indonesia, Nepal, Russian
Federation, Saudi Arabia, United States and Zimbabwe, continue
to escape serious scrutiny by the Commission. This is not because
information about the human rights situation in these countries
is not available to the Commission’s members - it is abundantly
so - but because member states of the Commission refuse to take
the necessary action because it conflicts with their own perceived
economic, political and security interests. The credibility
of the Commission is severely damaged as a result.
The Commission has established its own human rights mechanisms,
including country and thematic experts, to help it investigate
the human rights situation in specific countries and provide
detailed analysis and recommendations to enable it to make decisions
about how to address patterns of human rights violations. Outside
the Commission the treaty monitoring bodies also provide critical
analysis and conclusions which can inform decisions by the Commission.
Yet, all too often the Commission chooses to ignore the findings
and recommendations of these experts and the perpetrators of
human rights violations are left to continue to operate with
impunity. By failing to act promptly and appropriately the Commission
is at risk of becoming irrelevant in today’s world where
the human rights system and the values underpinning it are under
attack.
The special rapporteurs, independent experts and working groups
who collectively make up the Special Procedures are among the
most valuable tools that the Commission has at its disposal.
This was highlighted by the UN Secretary-General as part of
his continuing reform proposals where he set out a number of
proposals aimed at improving the work of the Special Procedures,
including through the selection of appointees.(105) At this
Commission, states will have the opportunity to vote for the
renewal of several mandates,(106) as well as nominate candidates
for a number of special procedures posts which will become vacant.(107)
The Commission has called for candidates to meet basic criteria
of independence, impartiality and expertise.(108) In support
of this commitment, the Commission should encourage states to
embark on a process at the national level that is public, transparent,
broadly consultative, and aimed at attracting the best candidates
for the special procedures posts, including women.(109) To compliment
these national-level activities, the OHCHR should develop criteria
for determining the suitability of potential candidates by clarifying
standards of independence and impartiality, competence, skills
and expertise, and draw up standardized "profiles"
for each mandate to outline the requirements of the post in
greater detail. Nominations of individuals for special procedures
posts may then be measured against the established criteria
and profile, and a final list of candidates presented to the
Commission's Bureau for final decision. As is practice with
the treaty bodies, the curriculum vitae of special procedure
mandate-holders should be posted on the OHCHR website.
The rate of implementation of the Commission’s resolutions,
decisions and Chairperson’s statements is also a cause
for serious concern. All too often the Commission itself notes,
year upon year, a failure on the part of the countries concerned
to take action to implement the recommendations by the Commission
and its Special Procedures. The introduction of the interactive
debate between states and the Special Procedures which was introduced
at the 59th session is a welcome development and may in the
longer term become an element in the Commission’s review
of implementation of its recommendations; however, it is vital
that comprehensive mechanisms be put in place to monitor state
accountability for measures to protect human rights and to assist
them in fulfilling their international human rights obligations.
AI takes the opportunity of the 60th session to challenge the
Commission to review its approach to human rights promotion
and protection and to instigate whatever reform is necessary
to enable it to better perform its role as the main human rights
body in the UN system. In particular AI calls on the Commission
to:
· Reaffirm that promotion and protection human rights in all
countries is one of the key functions of the Commission;
· Support the Special Procedures by calling on governments to
fully and promptly respond to their communications, implement
their recommendations, extend a standing invitation to the Special
Procedures to visit, and facilitate any visits requested without
delay;
· Renew the thematic and geographical Special Procedure mandates
which are coming up for renewal and call on states to nominate
suitable candidates, including women;
· Establish objective and transparent mechanisms for invoking
scrutiny by the Commission of the human rights situation in
individual countries, taking into account the recommendations
by the Special Procedures and the treaty monitoring bodies as
well as the demonstrated failure by many states to cooperate
with the human rights mechanisms of the UN;
· Create an effective system of monitoring and evaluating implementation
by governments of recommendations by the Commission as well
as by the Special Procedures in order to achieved increased
accountability by states.
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Europe and Central Asia(115)
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The "war on terror"
The impact of the 11 September attacks in the USA continues
to be felt across the region, with states using the "war
on terror" to privilege security over human rights. In
some states those suspected of "terrorism" are detained
without trial. In the UK foreign nationals remain interned under
legislation which allows for indefinite detention, without charge
or trial and on the basis of secret evidence. Many of those
detained are held in inhuman or degrading conditions in high-security
prisons. Spain continues to ignore long-standing recommendations
by international bodies to introduce greater safeguards for
suspects held under "anti-terrorist" legislation.(116)
States also use the "war on terror" as a pretext to
crack down on internal opposition. The authorities in Uzbekistan
have continued to clampdown on religious and political dissent
- at least 6,000 political prisoners remained in jail, and members
of independent Islamic congregations are among those who face
detention and intimidation. In Spain the only entirely Basque
language newspaper has been closed down, and 10 persons associated
with the paper are held under "anti-terrorist" for
exercising their right to freedom of expression.
Efforts by governments to limit asylum provisions and immigration
also benefit from the new language of "national security"
and "counter-terrorism", with an emphasis on control
rather than protection. A human rights perspective is lacking
from the European Union’s (EU) thinking on asylum, which
continues to promote a further sealing off of the EU at the
expense of international protection obligations. Some states
such as Italy have expelled asylum-seekers without a full and
fair hearing of their claims, including to countries where they
were at risk of human rights violations.
Racism
Racism, discrimination and intolerance continue to be a major
concern across the region, including in the spheres of economic,
social and cultural rights. Discrimination against Roma is widespread
in many European states, including in access to education, housing,
employment and social services. Many people seeking to return
home after being displaced by war in the Balkans face discrimination
on ethnic grounds, particularly in access to employment, education
and health care. Racist application of citizenship laws in the
Russian Federation has resulted in members of the mainly Meskhetian
population having been rendered effectively stateless, and as
such denied access to pensions, child benefits and higher education.
Racism is also a backdrop to human rights abuses by law enforcement
officials in the administration of justice. AI has received
reports of race-related ill-treatment by law enforcement officials
from a wide range of states across the region, including Belgium,
France, Greece, Italy, Bulgaria, Poland, Slovakia, Slovenia
and the Russian Federation. There is also a lack of due diligence
by some states in investigating and prosecuting assaults by
private actors on minorities, ethnic as well as religious. In
Georgia, for example, religious minorities continue to
face harassment, intimidation and violent attacks, while the
police has failed to provide adequate protection of those targeted
and to bring those responsible to justice.
Torture and ill treatment
Torture and ill-treatment generally is also a feature in states
across the region, including in Albania, Moldova, Romania, Serbia
and Montenegro. In other states, such as Macedonia, Greece and
Spain there have been reports of reckless or excessive use of
firearms, sometimes resulting in deaths. In Germany, there was
an intense public debate on the permissible use of torture after
it emerged that a senior police officer had ordered a subordinate
to use force against a criminal suspect. Prison conditions are
cruel and degrading in many states; and people with mental disabilities
are reported to have been subjected to inhumane treatment in
some countries, including in social care homes in Bulgaria,
through the use in some instances of cage beds, e.g. in the
Czech Republic, Hungary and Slovakia.
Rule of law
The lack of political will on behalf of the EU to confront human
rights violations within its own borders is increasingly disturbing,
particularly in the light of the planned accession of 10 new
member states in 2004. Many states lack independent scrutiny
mechanisms to address such violations. One state abolished the
death penalty, but at least three others continue to carry out
executions. Corruption and organized crime continue to erode
the rule of law in some areas, and economic factors fuel migration
and trafficking of people, including of women and girls into
forced prostitution.
In spite of some positive legislative reforms, torture and ill-treatment
in police detention remain a matter of grave concern in Turkey.
Russian Federation security forces continue to act with virtual
impunity in the conflict in the Chechen Republic, amid ongoing
reports of their involvement in torture and "disappearances".
Continued impunity for war-time violations is a concern in the
western Balkans; while some war crimes suspects have been transferred
to the custody of the International Criminal Tribunal for the
former Yugoslavia, others continue to evade arrest, some apparently
protected by authorities in Bosnia-Herzegovina, Croatia and
Serbia and Montenegro.
Freedom of expression and association is flouted with impunity
in Uzbekistan, where dissent from official policies in civic,
religious and political life was repressed on a systematic and
wide scale, and often in a brutal fashion, including through
intimidation and imprisonment. Human rights defenders in a number
of countries face threats and detention, including in Azerbaijan
where a campaign by the state-sponsored media against several
prominent defenders culminated in violent attacks on their offices
and raised fears for the safety of the defenders and their families.
The death penalty
There have been some positive moves on the death penalty during
the past year. Armenia abolished capital punishment, Kazakstan
announced a moratorium pending legislation to enshrine abolition
and Kyrgyzstan maintained its moratorium on executions. Tajikistan,
while retaining the death penalty, reduced its scope. However,
the two other retentionist states in the region, Belarus and
Uzbekistan, continue to carry out executions. The scale of executions
is believed to be particularly high in Uzbekistan, where scores
of people have been executed in recent years after unfair trials,
frequently amid allegations of torture, and with corruption
an integral part of the investigation, trial and appeal in such
cases.
Violence against women
Serious human rights violations against women and girls continue
to be reported across the region in the context of trafficking
and forced prostitution, amid concerns that victims of forced
trafficking are being failed by the judicial systems in source,
transit and destination countries. Domestic violence is also
an entrenched problem across the region, from Belgium to the
Russian Federation. Contributory factors include states regarding
domestic violence as belonging to the "private sphere";
a lack of legal provisions in some states specifically prohibiting
or criminalizing domestic violence; a lack of specialist police
units and training; insufficient provisions to provide protection
to victims; and court decisions which do not always reflect
the gravity of such offences.
