“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.
Violence against women
“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.”
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:
The death penalty
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.
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)
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.
Europe and Central Asia(115)
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, 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.